Cyclopædia of Political Science, Political Economy, and the Political History of the United States

Edited by: Lalor, John J.
(?-1899)
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1881
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New York: Maynard, Merrill, and Co.
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1899
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Includes articles by Frédéric Bastiat, Gustave de Molinari, Henry George, J. B. Say, Francis A. Walker, and more.
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HISTORY

II.150.1

HISTORY, Economic and Legal, and the Historical Method of Investigation. The object of this article is to trace the connection between the economic movement of society and the development of its positive law; and to indicate some of the relations between both and other phases of social evolution. Few persons conversant with the fundamental ideas of modern science would hesitate to admit that the present economy of every civilized country—in respect of the directions given to national energies, the occupations of different classes and sexes, the modes of production, the constituents and forms of wealth and its amount and distribution—is the result of a long evolution. Writers on political economy have indeed always had in view a development which might be termed an evolution, giving rise, for example, to division of labor and exchange, to wages, profit and rent, and to changes in their relative proportions. But they have conceived it as a special movement, impelled and directed by special economic forces. The natural laws by which it is governed, are, according to their exposition, deducible from certain general principles, such as love of wealth and aversion from toil and sacrifice; or, as expressed in a single phrase, the personal interest prompting every man to acquire as much riches with as little trouble as possible. Historical inquiry which involves an induction ranging over the widest possible field, teaches us, on the contrary, to regard the economic development of a nation, not as a distinct movement carried on by special forces, but simply as a particular phase of their whole social evolution, inseparably related to its other phases, legal, moral, intellectual and political. Each nation, from this point of view, has evolved its existing economy as the outcome of its history, character, environment, institutions and general progress. What the economist has to investigate in the case of a modern nation, is not a mere assemblage of individuals actuated by personal interest in a commercial sense, but an organized society which has had a long historical career, and of which corporate bodies, orders and castes—families, townships, boroughs, churches, traders, fraternities, priestly, noble, free and servile classes—rather than individuals, long formed the main constituent units. To ascertain the genesis of the economy of the people of England, for example, or even of the people of the United States, an old people in a new country, we must carry our researches far behind modern times, and into regions beyond the province of commerce and individual pecuniary interest. The constitution, usages and character of early Teutonic society, the ideas and traditions of ancient civilization, Oriental, Greek and Roman; the institutions of the mediæval world with its monarchy, feudal aristocracy and Catholic clergy, its chartered cities and guilds; contributed so to the evolution both of English and of American economy, that what either might have been, had any of these elements been absent, is beyond conjecture. In the earlier stages of social growth the economy of each nation was a matter wholly of common life, usage, institution and thought; of custom, law, religion, morality, tradition, social opinion and observance. Even at the present advanced stage of development in civilized countries, where individuality has acquired a considerable sphere, the nation collectively, with its polity, laws, character, opinions and environment, is the chief factor to be kept in view in the study of national economy. Two distinct conceptions are commonly confounded by writers for whom individual interest is the source and mainspring of economic movement and organization. The bulk of their system is based on the assumption that the conduct of individuals may be inferred from propensities of human nature supposed to be universal. Sometimes, however, they have in view rather the individual diligence, enterprise, energy and originality, and the variety of effort and resource developed by liberty, as opposed to state regulation or other forms of social control. But what the study of history teaches is, that individual interest and individuality themselves, owe their developments to antecedent and surrounding social conditions and national culture, attaining their ends, moreover, not only by the efforts on the part of individuals to which they prompt, but through the laws and institutions to which they lead; that individual liberty, so far as it exists, is the product of a long evolution, and is everywhere subject to much limitation, direct or indirect, on the part of the community; and that the various species of wealth which in different countries and ages have been the objects of desire and pursuit, have derived their attraction not from the propensities either of human nature in general or of personal idiosyncracy, but from national history and the atmosphere of thought and habit in which each individual lives.

II.150.2

—One of the principal modes by which the community collectively develops its economy is through its positive law. Much that economists have been wont to regard as the result of individual exertion, has been a product of national institutions and laws. The mere existence of personal wants or desires, having wealth of some sort for their object, could not have created it or maintained it. They would have prompted rather to strife, plunder and destruction than to labor, production and accumulation. The inferior animals covet certain possessions and use whatever weapon they are armed with to seize them. Human wealth is the result not of the disposition of each man to appropriate what he likes, but of the fact that other men, with similar wants and desires, have combined to secure to him the enjoyment of certain things under certain conditions. Nor without social combination and organization could powers of disposing of or exchanging articles of wealth exist. Society collectively must insure their ownership to purchasers, donees, mortgagees, heirs, devisees, as well as to their original possessors. The evolution of these powers through the legal progress of society forms one of the main subjects of economic inquiry in its proper extension. So intimately connected are the legal and the economic movements of society that each stands in the relation of both cause and effect to the other. Thus, the only mode by which some of the main motives to industry and thrift, which have their root in the family sentiments and affections, can become effectual, is through a law of succession; and it may be said both that these motives have generated the law, and that the law has given impulse to the motives. So again every step in the industrial and commercial progress of a community gives rise to new legal rights and obligations and new branches of civil law, which are in turn the indispensable conditions of advancement in wealth. The growth of the dimensions of the law of society as it moves forward in its economic career, attracted the attention of Montesquieu. A nation, he observed, which carries on trade or navigation, must have a much larger code or body of law than one which has not proceeded beyond agriculture, and the latter again must have a larger body of law than one which has not reached the agricultural stage. The economist, we may add, who studies the law of an advanced nation respecting property, tenure, conveyance, contract, inheritance, testamentary disposition, sale, loan, partnership, agency, pledge, inland trade, maritime commerce, banking, mining, railways, navigation and other departments of modern business, will find ample proof not only that the economic and the legal phases of social progress are closely related, but that one of the chief modes by which the economic structure of a community is conditioned, and its progress in wealth determined, is by the development which its positive law receives.

II.150.3

—The course of society, it must be borne in mind, is not always or in all directions for the better, whether in its legal or in its economic aspect; although on account of the poverty of language, the terms progress and advancement may sometimes be employed to denote merely the reverse of a stationary condition, or, in other words, an onward movement of a community in a career which is not necessarily one of improvement. Feudalism, for instance, was a phase through which society in western Europe passed, and from both an economic and a legal point of view, one which, if not wholly retrograde, reproduced some elements of barbarism. In the long struggle that has gone on ever since in England between interests, principles and ideas, commonly contradistinguished as feudal and commercial, sometimes the feudal, sometimes the commercial have prevailed. Yet in both cases society has moved on in its natural course, that is to say, in one determined not by the ideal law of nature in which the economists of the last century believed, but by the actual laws of social evolution. Legal history has two great general lessons for the economist of our own day, namely, that, on the one hand, the economic progress of society is effected largely by law in the juristic sense, and that, on the other hand law in the juristic sense is subject to law in the scientific sense of natural sequence and development. The greater part of the civil law of a civilized nation relates to property, industry, the commercial business of life, and the production, accumulation and distribution of wealth; and its provisions respecting them are no more arbitrary or accidental than the operations of the physical world.

II.150.4

—The oversight, by so many eminent English writers on economic science, of the cardinal truths that some of the chief natural laws of economic progress must be sought in the history of positive law, is traceable to certain dominant ideas. Adam Smith, in the first place, like his French contemporaries, following the theory of the age respecting the system of nature and natural law, restricts the sphere of positive law within the narrowest limits. The "natural order of things," or, to use another of Adam Smith's phrases, "the natural progress of opulence," was not in their view the actual economic movement of society under the real conditions of national history and life, but an imaginary course of things deduced from principles which at best took account of only a part of human nature. Bentham and his follower Austin, on the other hand, revolting against the nebulous conceptions of natural law pervading jurisprudence as well as political economy, sought to expel the term altogether from the nomenclature of political philosophy. With them law was simply the command, direct or indirect, of the supreme government of the state; and they concerned themselves with no ulterior source.

II.150.5

—Both economists and jurists were thus estranged from the conception of natural law, in the proper sense of the term, governing the development of positive law, and carrying on in a great measure through it the movement of society. The opening passage of Montesquieu's "Spirit of Laws" has been censoriously criticized in nearly identical terms by Bentham and Austin for describing law as embodying relations necessarily flowing from the nature of things. Montesquieu's language was infelicitous, yet he brought out and illustrated with historical and philosophical genius the truth that human nature and the circumstances in which human communities are placed, the stage of culture which they have reached, especially in the economic sphere, the affairs and business of life, give birth to relations between man and man and between man and woman, which not only form the staple subjects of civil law, but mainly determine its character and course. The most fundamental doctrine of the science of law is, that society, as it advances, continually evolves new dealings and fresh rights and obligations for legal definition, generalization, classification, sanction and regulation. A community can not develop the proprietary and other relations respecting land before the nomad stage has been passed, nor the personal relations involved in the family before marriage has been instituted, nor relations of contract between individuals while all things are tribal property and in common, or while no definite individual rights are recognized. When the agricultural stage is reached, settled life and the partition and cultivation of the soil gives rise to new social conditions and usages; and in proportion as manufactures and commerce are developed, there is a further growth of transactions, rights and obligations which it is the office of the lawgiver, the judge and the jurist to define, declare, and subject to arrangement and general rule. Glanvill, Bracton, Flets and other early legal authorities, though some of them were influenced by Roman doctrines, observed, classified and formulated relations between husband and wife, parent and child, guardian and ward, landowner and tenant, lord and serf, buyer and seller—relations of family, tenure, status, succession and contract—which had an existence anterior to their formal recognition, and which would never have formed the subject of judicial decision, legislation or judicial exposition had not society in its career naturally evolved them. For even feudal relations, rights and duties grew naturally out of the history and condition of society, and did not start up at the command of law-givers or rulers, whose power of shaping and regulating them was limited, and so far as it existed was itself of natural growth. The so-called analytical English jurists, Hobbes, Bentham and Austin, may be said to have given a modern dress to the maxim of imperial jurisprudence, Quod principi placuit legis habet vigorem. They speak of positive law as though they had got to the root and end of the matter when they have traced positive law to the visible proximate source of its sanction and compulsory obligation. The historical school, on the other hand, following Sir Henry Maine, regard law as embodying rights, duties and rules of contract evolved primarily by social life and intercourse. The law of a nation with respect to property, movable and immovable, to the family, to intestate and testamentary succession, to landlords and tenants, vendors and purchasers, creditors and debtors, lenders and borrowers, owner and carrier, principal and agent, master and servant, trustee and cestui que trust, has grown up naturally like the family union itself, the tillage of the ground, the rise of handicrafts, the development of commerce, internal and foreign, and the various departments of human affairs comprehended in the division of labor. In its natural state, positive law is, it is true, the result of two distinct movements, each combining the flow of several tributary streams; a movement, first of all, of society, developing modes of life and conduct, rights and obligations, acquisitions and claims; and a movement of legislation and jurisprudence, giving strict legal form to these products of social evolution and activity. In the earlier stages of national life the first of these two movements is the only one. The customs of the community, the usages and conduct held to be obligatory on its members, embody both the substance of its institutions, and the unorganized authority by which they are maintained. As the organization of society proceeds, a legislature and a judicature are developed, and at length law reaches a stage, through a combination of the two movements, at which it answers to the definition of the analytical jurist. Much barren verbal disputation might have been dispensed with, and a more scientific conception of the nature of positive law would have been gained, had it been perceived that it has stages of growth, and can not display in its infancy all the characteristics that distinguish it in its maturity. The English constitution under the Norman kings was not so fully and distinctly developed and organized that the seat of legislative power could be certainly ascertained; and it was and is matter of controversy how far the barons shared it with the king, in other words, where the sovereign power resided; yet it will hardly be maintained that during that long period England was without a polity and without law, though neither the political constitution nor the law possessed the definiteness and distinctness of form given by perfect development. Not only to the substantial elements of law—the relations and dealings of men and the consequent rights and obligations of which law is the authoritative expression—shrink, as it were, and by degrees disappear, as we retrace the steps of a community, and unfold and multiply as we follow its onward movement, but the organization which at length exhibits itself in a determinate legislature and regular tribunals, is of such gradual growth that the functions of legislator and judge may long be indistinguishably blended, and at a yet earlier stage the national assembly, in which the supreme legislative power comes at length to reside, may be indistinguishable from the host in arms on the one hand, and the meeting of the people for religious and festive solemnities on the other. A conflict may sometimes arise and even long continue between the two movements which have been described as concurring to develop mature positive law. The movement of society may generate transactions, usages, relations and rights, which law makers representing class interests or ancient ideas may be reluctant to recognize. The individual needs both of the owners of land and other classes may call for the free disposal of it both by conveyance and will, which an aristocratic legislature may refuse. Powers of mortgage may be urgently wanted, yet landed property, being, according to feudal ideas, inalienable from the heirs, may be slow in becoming legal security for debt. Commercial exigencies may create borrowing and lending at interest, while the law makers, following early religious or moral conception, may prohibit it as usury. Women may be tardily emancipated from disabilities at variance with the opinion of a highly civilized age. Yet if any one on this account doubts that the currents of life, business, social arrangements and wants, and ideas of expediency and justice, govern the movements of law, and that it follows a course determined not by the will of governments or legislatures, but by natural laws of society, he may be referred to its ultimate forms. Law, as Sir Henry Maine observes, often lags behind morality, or represents the morality of an earlier age. It often, too, lags behind the dictates of experience, and the needs of industry, commerce and progress. Yet in the end these natural forces prevail. The history alike of English and of Roman law is a record of their slow but sure victory.

II.150.6

—One of the main sources of light with respect to the natural cause of economic progress is that to be found in the movement of positive law. The uniformity of some of the main features of its development over a great part of the world could not have taken place accidentally. The student of its history finds, for example, on many sides evidence of a primitive co-ownership of land by groups of kinsmen, and the evolution everywhere by similar steps of separate property. He finds land at first inalienable from the agnatic line, and by degrees becoming salable, devisable and liable for debt. In the countries of mediæval Europe he sees the forms of individual land-ownership, called feuds, developed with striking uniformity, and giving place in turn, however slowly, to other forms which may be distinguished as commercial. As society advances, individual contract more and more supersedes inherited states as the sources of legal rights and obligations. Slavery softens into serfdom, and serfdom is at length superseded by free labor. Sons cease to be for life under paternal power. Women acquire proprietary rights equal to those of men. Procedure, civil and criminal, passes through some nearly similar stages of evolution. The laws even of two countries could not follow the same course of development by accident; and the uniformity, were it not the result of imitation—as, according to legendary fiction, the Twelve Tables were of the Laws of Solon—must have proceeded from natural causation and sequence. A philosophical Scotch lawyer of the last century, in a work deserving greater fame than it acquired (Dalrymple on "History of Feudal Property in Great Britain") has traced the resemblance between the course followed by the laws of England and Scotland in relation to the tenure of land, its voluntary alienation inter vivos and involuntary alienation for debt, its devolution by intestate and testamentary succession, the forms of its conveyance, and the constitution of the tribunals exercising territorial jurisdiction. The reader of the work will find that the author amply makes good the proposition laid down in the preface that "the progress of these laws is in both countries uniform and regular, advances by the same steps, goes almost in the same direction; and where the laws separate from each other there is a degree of similarity in their very separation." The similarity of the movement in the two countries proves, it is true, only the fact of natural sequence, if imitation be excluded, without disclosing its reason and cause, or putting us in possession of the laws of social progress at work. When, however, the author proceeds to show that commercial and other exigencies and interests were on the side of the changes that took place in the positive law of the two countries, how these forces gained strength as opposed to those on the side of feudal institutions, we not only obtain proof of regular order and natural growth, but get hold of the laws of nature governing the evolution. Even in the case of a single country, were it shown that positive law had followed a path which the events of a growing society, and of advancing industry, commerce and civilization demanded, we should be justified in concluding that the movement had been determined by natural laws of social progress. The history of Roman law, for example, alike under the republic and under the empire, can not be studied without a clear conviction that it followed a path of development directed by natural causes.

II.150.7

—It belongs thus to the province of the economist as well as of the jurist to investigate the history of positive law. The movement which the latter examines on its legal side, or in reference to the legal rights and obligations, capacities and incapacities, which it evolves, has also its economic side in reference to the development of industry, commerce, and the amount and distribution of wealth. The movement which Dalrymple showed that the laws of Great Britain had undergone in relation to the tenure, inheritance and transfer of land, is the same movement which the third book of the "Wealth of Nations" has traced, though somewhat superficially, on its economic side, showing how the towns contributed to the improvement of the country. The movement "from status to contract" portrayed by Sir H. Maine in its legal aspects, has been considered by a subsequent writer in its economic phases. Every law, as the latter observes, relating to property, occupation and trade, evolved by this movement, is alike an economic and a legal phenomenon. Changes in the law of succession, the growth of the testamentary power, the liability of property for debt, are economic as well as jural facts, both causes and effects of changes in the economic structure of society.

II.150.8

—Some general outlines of the course of development which positive law has followed in western Europe, and of the causes directing it, may be briefly indicated. The economic movement of society has been similar in some essential features in several countries, and there has been a corresponding similarity in the development of their civil laws. The stages of progress, commonly distinguished as pastoral, agricultural and commercial, have been stages of legal as well as of economic development. There could be no law of either property or contract so long as communism prevailed; such general rules of conduct as existed at that stage related chiefly to offenses against the person. Even when separate property had come into existence, so long as cattle formed almost the only possessions of individuals, there could be few subjects of civil regulation. But with agriculture, rights of property, both in land and in new movable wealth, were evolved, and a multitude of new relations and dealings between individuals called forth a considerable body of law, though in a rude and embryo form, and with but an imperfect organization to enforce it. The subsequent development of trade, the growth of towns, the multiplication of handicrafts, exchanges and contracts, gave birth to a fresh body of general rules, whether resting on local authority or on that of the central government. Family relations, too, with the motives to production and accumulation which they supplied, gave rise to new institutions respecting the succession to property, and to the testamentary power. Meantime, however, another source of law was at work. The political and civil organization of society took, under peculiar conditions, what is called the feudal form; land becoming the basis of a subordination of classes, and of a body of law to maintain it, essentially obstructive in many respects to social progress. As industrial and commercial improvement nevertheless advanced, at least in the towns, interests steadily multiplied demanding legal rules respecting property, tenure, transfers and succession fundamentally opposed to those of feudalism. Thus a conflict took place between two sources of law, attended with different results under different conditions in different countries. The statute of wills in the reign of Henry VIII., partially restoring the testamentary power over land which feudalism had extinguished, and assigning as a reason that without it parents could neither provide for younger children nor meet their obligations to their creditors, furnishes one of many illustrations that might be given of the nature of the conflict. There are doubtless diversities as well as similarities in the developments of law in different countries, as in the laws of succession in England and France, but even the diversities attest the subordination of civil law to law in the sense of causation and sequence, since they can be clearly traced to differences of history and surrounding conditions. In the same country there may indeed be different systems of law emanating from different sources, representing different ideas, interests and political or social forces, and consequently embodying different legal principles, as the common law, the statute law and equity did in England in the fifteenth century, where the statute De Donis, which the barons would not repeal, forbade the alienation of entailed estates, while the common law, following the interests of the public as well as the policy of the barons, eluded the statute De Donis by a fiction; and when the common law, on the other hand, adhering to feudal doctrine, deprived landowners of the power of devising their estates, while equity met an urgent social want by enforcing trusts in favor of devisees. The statutes of fines, uses and wills represent the finally dominant forces.

II.150.9

—The connection between the legal and the economic phases of the social evolution, it is to be observed, does not consist only in the fact that the economic movement of society is effected in a great measure by the movement of positive law. The same forces that produce changes in law are also in active and constant operation in daily life. The wants and interests, for example, which create legal rights of individual property, foster agriculture, manufactures and commerce. The causes that lead to a law of transfer, multiply the wealth which forms the interest of transfer. The conditions that lead to the development of laws of tenure, partnership, agency, sale, mortgage, insurance, etc., create innumerable dealings to which such laws apply. The sentiments that clothe themselves in laws relating to family relations and the succession to property, are at work within the family, influencing parental and conjugal conduct and promoting the accumulation of wealth as well as affecting its distribution. The action of the community through its institutions and laws, on the one hand, and individual action, on the other hand, are inseparably connected; and it is by the impulse and direction which they give both to the collective action of the community and to personal effort, that the motives comprehended in the phrase 'individual interest' make themselves effectual. Positive law is, however, only one of the modes by which society collectively develops its economic career. Both the legal and the economic phases of social progress are closely connected with its intellectual, moral and political phases. The prosperity of a community depends much more on its intellectual and moral condition than on the intensity of the desire for wealth, often a cause of loss to nations as well as individuals. The main foundation of the superiority of modern over mediæval and ancient society in productive power lies in the direction given by the course of social development to the modern intellect toward scientific discovery and practical invention; and could we obtain a key to the laws determining the employment of the intellect of nations, we should vastly augment our knowledge of the laws of industrial progress. A light is thrown both on this problem, and on the relations between the legal and the other phases of social development, by the fact that the positive law has been the principal subject engrossing the mind of all great historical nations during an important part of their career. The structure of the Athenian courts of law prevented the growth of a regular jurisprudence, but legal proceedings constituted the main occupation of the Athenian citizen's mind from the days of Hesiod to those of Demosthenes. The chief product of the Roman intellect, from the Twelve Tables to the age of the Antonines, was law. In the middle ages, Roger Bacon complained that the main obstacle to the progress of physical science as of other studies, was, that law engrossed all the energies of the educated class. "In no other country in the world," said Edmund Burke, of America, in 1775, "is the law so general a study. All who read (and most do read) endeavor to obtain a smattering in that science." It is manifest from this general predominance of law during a great stage of social evolution that the path of the human intellect is determined not by logical sequence, or the filiation of truths, but by a combination of conditions, economic, moral and political. There must, first of all, be a sufficient development of individual property and of transactions relating to it, to give importance to general rules respecting its ownership and the procedure by which disputes relating to it are determined. The mental development again of at least a part of the community must be such as to enable them to generalize concerning the affairs and relations of life, and to comprehend the application of general principles to particular cases. Political organization must have so far advanced as to supply some sort of judicature and regular legal process. The moral state of society again must be such that a majority are willing to refrain from violence and strife when differences arise, and to submit them to judicial arbitration. On the other hand, the litigious spirit which invests law and legal proceedings with much of their popularity at periods of social history, such as the last four centuries of the middle ages, involves a survival in an outwardly peaceable form of much of the combativeness, vindictiveness and cunning which at an earlier stage, when passions were fiercer and more ungovernable, led to bloody feuds and cruel stratagems and ambuscades. In some of the conditions that make law, in the juristic sense, the main intellectual occupation at one period of national progress, Mr. Herbert Spencer might find an unexpected illustration of the general proposition which his philosophic genius has brought to light, that the discovery of law, in the scientific sense, itself conforms to scientific law. It has already been pointed out that positive law embodies a generalization of natural relations and uniformities, and is itself subject accordingly to regular evolution and growth. The early legists, judges and legislators who classified and formulated uniformities in the usages and affairs of society were unconsciously making scientific inductions and discovering sequences and co-existencies resulting from natural laws of society. The relations and uniformities which engrossed them had all the characteristics which, according to Mr. Spencer's doctrine, enable them to command early attention—urgent importance as affecting personal interests, conspicuousness, frequency of occurrence, and comparative simplicity and concreteness. There is, however, a point in which, as applied to positive law, Mr. Spencer's theory of the order in which relations are generalized and laws of nature discovered is incomplete; namely, that, as already pointed out, moral and political conditions must be taken into account. This observation extends to a wider problem, of which the direction of the highest intellectual faculties forms a branch, with respect to the natural laws determining generally the occupations of national energies and powers; a problem which most eminent writers on economic science have overlooked. Adam Smith might at first sight indeed appear to have had this inquiry in view when in the introduction to the "Wealth of Nations" he says that one of two main circumstances on which the amount of national wealth depends, is the proportion of the population engaged in useful or productive labor; the causes governing which he promises to expound in his second book. But his exposition touches only the surface of the question. The quantity of productive labor, he states, depends on the amount of capital, and the modes of its employment. Deeper and more instructive inquires, such as that into the causes that make a state of society military or industrial, find no place in the philosopher's discussion. Whether a society is mainly industrial or military and therefore mainly productive or unproductive, does not depend on the amount of capital; the amount of capital, on the other hand, largely depends on whether military or commercial tendencies are predominant, and this depends principally on moral and political conditions. And as the combative spirit of the middle ages helped to make law the most engrossing study, so, on the other hand, the general predominance of industrial interests and pacific tendencies gives to the modern intellect its prevailing bent toward physical discovery and invention, the most productive departments of national labor.

II.150.10

—Examples of the connection between the economic and legal, and the moral and other phases of social development, might be multiplied. It may suffice to add that although the legal enforcement of contracts is one of the principal requisites of industrial and commercial progress, it is not until a comparative and advanced moral development has been attained that a true law of contracts is evolved, or could be tolerated. In early society it was not deemed immoral to break a contract, unless such contract had been solemnized by religious ceremonies. Harold was held bound by a promise to William of Normandy, though given under duress, because he was said to have touched a coffer containing sacred relics. To have violated an engagement entered into with no such solemnity would hardly have been deemed an offense. It was again because the observance of contracts and the fulfillment of trusts were regarded as matters of religious rather than of either moral or legal obligation, that the ecclesiastical court alone concerned itself with them generally in the twelfth century. The king's court in Glanvill's time took cognizance of few contracts, not only because its interposition in such cases would rarely have been remunerative, but also because the crown would have gained little prestige or popularity by it. The economic aspect of a state of society in which so much depended on religion, and so little on morality or law, is illustrated by the statement of a chronicler that the number of monasteries built in England during the reign of Henry I. was so great that almost all the laborers in the country became masons or carpenters. Exaggerated as the statement is, it covers the substantial truth that an immense part of the wealth of England belonged to monks, and that abbeys and churches were the main products of the national capital and labor. Nor can the economy of our own day be explained without reference to mediæval religion. Whoever reflects on the number and cost of ecclesiastical buildings, the great aggregate revenue of the clergy, the prodigious sale of religious publications, and the observance of Sunday and other sacred holidays, must perceive that the present economic structure of both European and American society is explicable only as the outcome of a long evolution in which there has been continuity as well as change, and over which religion has throughout exercised a powerful influence.

II.150.11

—Were we to look only at modern production and exchange, industry and commerce, in the narrowest sense, we could clearly trace the development of modern from mediæval English economy, even where the two systems differ most. The most essentially different features may be said to be the direction of modern trade by individual interest and enterprise, as contrasted with the mediæval regulation of law, custom, town corporations and guilds; production on a great scale by large capitals in place of the mediæval system of small capitals; the predominance of towns, manufactures and commerce over the country; the dissolution of joint husbandry, and the nearly complete disappearance of peasant properties and farms. The germs of the modern system in respect of all these features are discoverable in the later stages of the mediæval. The growth of the spirit of civil and religious liberty discernible in the age of Wycliffe, led to the idea of individual liberty in the economic sphere also. The bent of political philosophy was in the same direction under the influence of the theory of natural law which came down from the middle ages with the laws of Rome. Inequality of capital had begun in the mediæval guilds, as a necessary consequence of division of labor, some trades being necessarily more lucrative than others, having a wider market, and being carried on upon a greater scale. Even within each guild restrictive regulations could not entirely repress superior industry, enterprise and thrift, or prevent some of the members from accumulating greater wealth than others. In foreign commerce especially capital grew with the growth of navigation, and the size and tonnage of ships. The regulations of Elizabeth's statute of apprenticeship were confined, like those of the mediæval guilds and corporations, to boroughs and market towns, and to old industries, and left free ground elsewhere on which production could assume larger dimensions, so that even before the mechanical inventions of the eighteenth century—themselves the offspring of the direction given by a long social evolution to mental energy—capital was gaining the ascendant, and the small system of production declining. Again, before the sixteenth century, the superior profit of wool and corn and the unproductiveness of joint husbandry had led to extensive inclosure and the consolidation of farms. And land laws of mediæval origin completed the evolution (for evolution takes at times the shape of revolution) which drove the English rural population to the towns, and made the country the pleasure ground of the rich instead of the home of the peasant. Such is, in brief, the genesis of modern English rural, industrial and commercial economy.

II.150.12

—But the student of economic science must banish from his mind the idea that it relates only to production or exchange in the narrow sense, or to the farm, the factory and the market, to capitalists, laborers and landlords. It is concerned with all the employments of national faculties and energies, and with all the conditions, moral, religious, intellectual and political, affecting the nature, amount and partition of national wealth. The political constitution, for example—with the bent it gives to the energies both of society at large and of particular classes, the field of civil and military occupation it creates, the laws of property and the territorial system it maintains, the expenditure of public revenue and the fiscal system it entails—forms as essential a part of national economy as the system of husbandry and trade. And the descent of every modern polity from a mediæval parentage will not be questioned.

II.150.13

—Were further evidence needed that modern economy owes its structure to natural history and a long evolution, and that individual interest itself, of which alone the deductive economist takes account, is moulded and fashioned by social antecedents and surroundings, political, legal, moral, religious and intellectual as well as industrial, the economic position of women must complete the chain of proof. A passage in the "Wealth of Nations" indeed makes it plain that Adam Smith did not attempt to apply to women the fundamental principle of his system, that "the natural effort of every individual to better his own condition, when suffered to exert itself with freedom and security" is the source of national wealth and prosperity. In the only passage in which the philosopher alludes to women, he says: "They are taught what their parents or guardians judge it may be necessary or useful for them to learn, and they are taught nothing else. Every part of their education tends evidently either to improve the natural attractions of their person, or to form their minds to modesty, to chastity and to economy, to render them likely to become the mistresses of a family and to behave properly when they have become such." It has been justly said that when Adam Smith spoke of "the desire of every individual to better his own condition," he had only the half of society denoted by the masculine pronoun in view, he meant only what he elsewhere says, "the natural effort of every man." Yet he has in the single passage in which women are alluded to, pointed to a class of interests on which both the form and the stability of the economic structure of every society chiefly rest, the family affections and motives. It is these interests, not those which have personal gain for their object, that have everywhere done most to foster accumulation and to create durable wealth. The corner stone of the market itself is the old historical institution, the family. In the very country in which pecuniary interest is supposed to be strongest, and commercial principles to actuate human conduct most commerce would shrink into insignificant proportions were every man—to say nothing of woman—to seek only to better his own condition, and not to concern himself about that of his family. In the United States, the country in question, the national economy is, throughout, the result of a long history, though its later stages have been developed in a new country. The township, for example, which has played and still plays no insignificant part in the economic structure, is the old Germanic vicus. Had the leading colonies been founded by Frenchmen instead of by Englishmen, or by cavaliers and high churchmen instead of by republicans and puritans, American economy would to-day be materially different from what it is. Let it not be forgotten, too, that the discovery of America was the achievement of mediæval society, and that powers of navigation, the maritime enterprise and the process of thought that led to it, were of mediæval development.*24

T. E. CLIFFE LESLIE.


Notes for this chapter


24.
This was, we believe, the last literary production of its rarely gifted, highly distinguished and widely lamented author. It was received about three or four weeks before his too early death.—J. J. L., ED.

Footnotes for INDEMNITY IN CASE OF WAR

End of Notes


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