Book i. chap. 26.

In the following period, which may be said to extend till the end of the free Republic, these restrictions vanished. The progress of the plebeians in political power as well as in wealth made it impossible to exclude them from the possession of legal lore. Some plebeians became no less distinguished as sages of the law than patricians had been; indeed Tiberius Coruncanius, the first plebeian chief pontiff, is occasionally described as the founder of the later school of scientific lawyers. He is said to have been the first person who offered himself to the public as willing to advise on legal questions. The profession attracted many able and ambitious men, because it was one of the three recognized avenues to high office, the alternative to arms and to political oratory. One may fairly call it a profession in this sense, that those who adopted it made it the main business of their life, and by it won their way to fame and influence. But it was not such a profession as the bar is in modern countries, not a gainful profession whereby a fortune could be amassed, not a close profession into which entrance is granted only upon definite terms and subject to definite responsibilities. Any man who liked might declare himself ready to give legal advice or settle legal documents. He had no examination to pass, no fees to pay, no dinners to eat. He acquired no right of exclusive audience of the Courts; he became amenable to no jurisdiction of his compeers or of any constituted authority. The absence of these things did not, however, prevent the Roman lawyers from having a good deal of what might be called professional feeling, a high sense of the dignity of their calling, and a warm attachment to the old forms and maxims of the law. These Republican jurists composed treatises, only a few scattered extracts from which have come down to us, and gave oral teaching to the disciples who surrounded them while they advised their clients, as they sat in state in the halls of their mansions.

With the fall of the Republic there begins a third period which covers about three centuries. It had been the custom for a man who had a point of law to argue before a _iudex_[109] trying a case to endeavour to obtain from some eminent jurist an opinion in his favour, which he produced to the _iudex_ as evidence of the soundness of the view for which he was contending. Now Augustus, partly to enlarge and inspirit the action of the jurists, partly to attach them to the head of the State, permitted certain of the more eminent among them to give _responsa_, _i.e._ answers or opinions on points of law, under and with his authority, directing such opinions, when signed and sealed, to be received by a _iudex_ trying a case as settling a controverted point. His successor, Tiberius, issued formal commissions to the same effect[110]. Here we enter the third stage, for from this time forward not only did it become obligatory on the _iudex_ to defer to an opinion given by one of the ‘authorized’ jurists, but there was also created an inner privileged order within the whole body of jurists, this inner order consisting of those, usually no doubt the most conspicuous by learning and ability, who had obtained the imperial authorization. And out of this privileged class the Emperor was apparently accustomed to choose the great judicial officers of state, the praetorian prefect—in later times the quaestor also—the members of the Imperial Council, and possibly the chief judicial magistrates of the provinces, so that the career of a jurist continued to be, though in a somewhat different form, one of the main paths to distinction and power. Oratory, which had formerly swayed the people, was now practically confined to the Senate and the Law Courts, and thus became separated from politics: for even in the Senate few ventured to speak with freedom. As the profession of law was now the chief rival to the profession of arms it drew to itself a large part of the highest ability of the Empire. After the great decline in literature and art which marks the period of the Antonines, the standard of learning, acuteness, and philosophical grasp of mind among the jurists still continued to be high. Even their Latin style is more pure and nervous than we find among other writers of the third century. The period of their productive activity—that which we commonly call the classical period of Roman Law—may be said to close with Herennius Modestinus, who was praetorian prefect about the middle of the third century of our era. Thereafter we possess only a few names of notable jurists, scattered at long intervals, and apparently inferior to their predecessors.

Footnote 109:

The _iudex_ (who is not to be thought of at this period as a judge in our sense—he is more like a jury of one, or a referee) was not necessarily a skilled lawyer, and therefore was presumably not competent to decide a knotty technical point by the force of his own knowledge.

Footnote 110:

The precise nature of the action taken by Augustus and Tiberius is the subject of some controversy, as to which see Goudy’s edition of Muirhead’s _History of Roman Law_, p. 292, Sohm, _Institutionen_, § 18, and Krüger, _Geschichte der Quellen des Römischen Rechts_, § 15. _Responsa_ had been given in earlier days by the _Pontifices_, and Augustus was _Pontifex Maximus_. As to a similar practice among Muslims see Essay XIII, p. 239 _ante_.

Although throughout these three periods the jurists may fitly be described as a Source of Law, their function was by no means the same from the beginning till the end. In the first period they were the depositaries of a mass of customs which changed very little; and they did not so much create law as give a definite shape and expression to it in the carefully phrased rules and unvarying formulas which each generation handed down to the next. The events and circumstances of the second period, which saw the knowledge of the old customs much more widely diffused, and saw also a considerable growth of statute law, threw upon them the duty of expounding both customs and statutes, and of covering the ground which neither customs nor statutes had occupied. This meant a good deal in a thriving and expanding community, so the _interpretatio iuris_ (as the Romans call it) which they describe as the chief service rendered by these legal sages, became large in quantity, though it was almost entirely confined to the filling up of interstices, and did not attempt to produce new principles or lay down broad rules. Its authority, moreover, was a purely moral authority, based upon nothing but the respect paid to the intellect and learning of the particular jurist from whom some doctrine or dictum emanated, regard being of course had to the length of time during which, or the approval of the profession with which, a doctrine or dictum had been accepted. With the introduction in the third period of a specific commission from the Emperor, the jurist, that is the authorized jurist, became recognized as competent to make law (_iuris conditor_). He acted only by interpreting, _i.e._ by delivering an opinion on a point previously doubtful, but his decision, once given, had an authority independent of his personal fame, the authority of the Emperor himself, by this time a source of law through the magisterial powers conferred upon him for life. Let us note further, that whereas in the earlier part of the second period it was largely through the modelling of the system of actions and pleading that the influence of the jurists was exerted, in the later part of that period and during the whole of the third, it was chiefly by means of their writings that they developed the law. Most of these writings were the work of men who enjoyed the _ius respondendi_; yet some of those who belong to a time before that right began to be granted carry no less weight. Antistius Labeo does not seem to have enjoyed it, but he is always quoted with the greatest respect, and it seems doubtful whether it was possessed by Gaius, who was, centuries after his death, placed among the five most authoritative writers.

It does not here concern me to enlarge upon the labours of the great legal luminaries of the earlier Empire, either as writers of treatises (it is in this capacity that we know them best, from the fragments of their works preserved in Justinian’s _Digest_ ) or as advisers of the Sovereign, assessors in his supreme Court of Appeal, and prompters of his legislative action. For the present purpose it is sufficient to suggest some reasons which may account for the more considerable part which the Roman jurists played as a source of law than that which can be attributed to legal writers in England. Though some few of our English treatises are practically law, constantly cited and received as authorities—Coke upon Littleton supplies an example from former times, and Lord St. Leonards on Vendors and Purchasers from our own—they are not to be compared in point of quantity or importance with the text-books out of which Justinian’s compilation was framed. In earlier days it was no doubt different. The writings of Glanvill and Bracton, with the book ascribed to Britton and the treatise called Fleta, were all to some extent recognized as law in the fourteenth century; that is to say, they would have powerfully, and in most doubtful cases decisively, influenced the mind of any judge to whose knowledge they came when he had to determine a point of law. In that age there was no such distinction drawn between what is and what is not legally binding as the wider experience and the more precise analysis of modern times has made obvious to our minds. Moreover, in an age when customs were still uncertain, because largely fluid and imperfectly recorded, the statement of what a writer held to be law had an incomparably greater force than in later days. And it may be added that the extracts from the Roman Law, of which Bracton’s treatise, for instance, is full, would, at least to the ecclesiastical lawyers, carry with them the authority of the Roman law itself. After the fifteenth century, comparatively few books hold a place of authority; and perhaps the best example of those which do is Littleton’s _Treatise on Tenures_ . By this time the abundance of reported cases began to make it less necessary to have recourse to treatises; nor was the writing of them a favourite occupation of the earlier common lawyers.

III. DIFFERENCE BETWEEN THE ACTION OF ROMAN AND THAT OF ENGLISH JURISTS.

What are the causes of this singular difference between the course of legal development in England and that which it took in Rome? The most obvious is the different position in which the imperial commission placed certain of the more eminent jurists. They were thereby practically erected into legislators, for their formally expressed opinions were treated as though proceeding from the Emperor himself, and the Emperor was from the first virtually, and afterwards technically also, a fountain of legislation. True it is that this authority was not at first extended to the treatises of these jurists. It attached, at least in earlier days, only to the _responsa_ which they had authenticated by their seal, and a _responsum_ probably carried authority only for the particular case in which it was delivered. But nothing was more natural than that its weight should be accepted for all purposes, and that the utterances of the privileged jurists, whether contained in a collection of _responsa_ or in any other kind of law-book, should command a deference seldom yielded to any private writer, however eminent. Nor does the fact that both in their _responsa_ and in their other writings these jurists differed from one another, maintaining opposite views on many important points, seem to have substantially detracted from their influence. Such divergences were indeed, down to Justinian’s time, a source of embarrassment to practitioners and judges. Looking at the thing as a matter of theory, we may wonder how the inconvenience could have been borne with, for unless a statute was passed settling a controverted point, the point might remain always controvertible. But this is one of the many instances in which we find that a system which seems, when regarded from outside, unworkable, did in fact go on working. Probably, when the controversy was one of importance, there came after a time to be a distinctly preponderating view, which practically settled it; and possibly the sense of responsibility under which the authorized jurists wrote contributed to make them not only careful but guarded and precise in the statement of their conclusions.

Another cause for the greater relative importance of the Roman jurists as creators or moulders of law may be found in the social position of the legal profession at Rome. In England the profession is and always has been followed primarily as a means of livelihood. Out of the many who have failed to find it remunerative, some few have devoted themselves to study and have enriched our jurisprudence by valuable treatises. But the general tendency has been for the men of greatest mental vigour and diligence, and also for the men of the widest practical legal experience, to be so completely absorbed by practice as to have no leisure for the composition of books. English law-books are written mostly by young men who have not yet obtained practice, or by older men who through the negligence of Fortune, the undiscernment of solicitors, or perhaps some deficiency in practical gifts, have never succeeded in obtaining it. In some remarkable instances they are the work of persons whose eminence has raised them to the judicial bench. But they are hardly ever written, and indeed could scarcely be written, by the men in full practice, yet such men have the great advantage of being in daily contact with the working of the law as a concrete system, and they include, not indeed all, but a great part of the best legal talent of each generation. At Rome, however, the jurist of republican days, making no gain from his professional work, and not needing it, for he was a man of rank and means, took practice more easily, and devoted a good deal of his time to the literary side of his life. Thus we are told that Labeo spent half his year in Rome giving instruction to his disciples and advice to his clients, the other half in the country composing his admirable treatises. Under the Empire the profession doubtless attracted a large number of persons of lower station and smaller means. But the habit of writing and of teaching went on among the leaders.

In this habit of teaching we may find a further reason for the prominence of the jurist. The giving of oral instruction in law to those who were preparing themselves for its practice, was at Rome always an important branch of a jurist’s activity. Cicero tells us how he and others among the youth of his own generation stood as disciples round the chair of Mucius Scaevola, gathering the crumbs of legal wisdom which dropped from his lips, putting questions and doubtless taking notes of the explanations which the sage deigned to give. Other leading luminaries were surrounded by similar groups. Two centuries later, Gaius is generally thought to have been a teacher of law, and won his high reputation largely by the educational treatise which has come down to us. And in still later times the two great law schools of Beyrut and Constantinople were the chief homes of legal learning, and those who lectured in them among the chief legal lights of the Roman world. Four members of the Commission which prepared the Digest were chosen by Justinian from among these teachers, and given the place of honour next after Tribonian, the president of the Commission. In England, on the other hand, legal teaching had during the last century and a half fallen sadly into abeyance, and has only within the last few years shown signs of reviving. Yet it is clear that the practice of teaching is of the utmost value for the composition of treatises, not only because it supplies a motive and an occasion, but also because it tends to make a book more systematic and lucid, since the teacher feels in lecturing the paramount necessity of logical arrangement and of clear expression. The best survey, at once concise and comprehensive, of English law that has ever appeared—Mr. Justice Blackstone’s book—was founded on oral lectures given in Oxford: and the great works of Chancellor Kent and Justice Story in America had a like origin. The merits of these two last-named writers are just the kind of merits which the habit of teaching tends to produce. Nor ought we to forget a more recent example, the small but eminently acute and suggestive volume of lectures on the Common Law of Mr. Oliver Wendell Holmes, now Chief Justice of Massachusetts.

The main cause of the smaller number in England of legal writers who have taken rank as Sources of Law, is doubtless to be sought in the fact that the highest juridical talent of the most experienced men has with us poured itself through a different channel, finding its expression in the decisions of the Judges. It is our series of Reported Cases, now swollen to many hundreds of volumes, a mass of law so large that few lawyers possess the whole of it, that really corresponds to the treatises of the great Roman jurists. The Reports fill a place in English legal studies corresponding in a general way to that which those treatises filled in the Roman Empire. They are the work of a similar class of men, those who from active practice have risen to the highest places in the profession. Men in such a position have rarely the leisure to occupy themselves with writing law-books, nor have they usually an impulse to do so, since what they have to say can be adequately delivered in their spoken or written judgements. And though the merits of our English judicial decisions are not altogether the same as those of the great Roman text-books, still the judgements of the most eminent judges will, if taken as a whole, bear comparison either with those text-books or with any other body of law produced in any country. In logical power, in subtle discrimination, in breadth of view, in accuracy of expression, such men as Lord Hardwicke, Lord Mansfield, Lord Stowell, Sir William Grant, Mr. Justice Willes, Sir George Jessel, Lord Cairns, and Lord Bowen, to take a few out of many great names, may fairly rank side by side with Papinian or Ulpian, with Pothier or Savigny.

This is not the place for an attempt to estimate the respective advantages of case law and text-book law. But it may be remarked that they have more in common than might at first sight appear. English text-books are almost entirely a collection of cases with comments interspersed. Sometimes a general rule is stated which may go a trifle further than the cases do; sometimes an opinion is thrown out on a point not covered by authority. Still the cases are the gist of the book. I have heard an eminent judge[111] of our own time observe that the easiest way to codify the law of England would be to enact that some eight or ten established text-books, such, for instance, as Jarman on Wills, Chitty on Contracts, Williams on Executors, Lindley on Partnership, Smith’s Mercantile Law, Sugden on Powers, Smith’s Leading Cases, Hawkins on the Interpretation of Wills, Dicey on Domicil, should have the force of statutes. To do this would add little to the volume of the existing English law, for the text-books mentioned are in reality digested summaries of decisions that lie scattered through the Reports. And similarly the treatises of the Roman lawyers contain a large number of cases, _i.e._ opinions given by eminent lawyers upon sets of facts laid before them or imagined by them in order to show the application of a principle. The Romans themselves attribute high authority to a concurrent line of decisions[112]; and doubtless decisions given by magistrates or by emperors found their way into, and influenced the text-books, though we do not know what means were taken of recording them. In fact the difference between the English and the Roman system resides chiefly in two points. With us the binding force of a rule depends on its having been actually applied to the determination of a concrete case. With the Romans an opinion delivered in a _res iudicata_ is not necessarily weightier than if it was delivered in any other way. It is valid simply because it proceeds from a high juridical authority. Probably in early imperial days there was a difference between the force of a jurist’s _responsum_ signed, sealed, and produced to a _iudex_, and an opinion expressed in any other way by the same jurist, like our distinction between so much of a judgement as is needed for the decision of the case and the accompanying _obiter dicta_. But any such difference seems to have presently disappeared. And secondly, while the opinions on points of law of English jurists are scattered here and there over hundreds of volumes, with only a chronological arrangement, those of Roman jurists were gathered into systematic treatises.

Footnote 111:

The late Lord Justice W. M. James.

Footnote 112:

_Dig._ i. 3. 38.

The Roman system has the merits of logical arrangement, of consecutiveness, of conciseness; the English, wanting these, has advantages in being so copious as to cover an immense variety of circumstances, and in consisting of opinions delivered under the stress of responsibility for doing justice in the particular case. It presents moreover to students an admirable training in the art of applying principles to facts. Both systems have the defect of uncertainty, because under both there may be a conflict of views resting on equal authority. Broadly regarded, both may be said to spring from the same source. According to German writers, the law made by the jurists springs from what these writers call the ‘legal consciousness of the people,’ and derives its ultimate authority from Custom, _i.e._ from the tacit acceptance by the people of certain doctrines and rules. We in England dwell upon its formal recognition by the Courts as the proof of its authority. But in both cases that which becomes recognized as law has passed through and been shaped in the workshop of Science. It is the learning and skill of trained professional students, whether English judges or Roman text-writers, that has done the work which the people, or the Courts for the people, have accepted.

IV. MAGISTRATES AND JUDGES AS MAKERS OF LAW.

We come now to consider the second of the three great sources of law, the Official or Magistrate. He holds an intermediate place between the Jurist on the one hand, and the Supreme Power, whether an Emperor or a Parliament, on the other, speaking with more of plenary authority than the former and with less than the latter. He may at first sight appear to be not really a species by himself, but merely a particular instance of legislation by the Supreme Power in the State, acting not directly (_i.e._ not as itself enunciating legal rules) but mediately, by delegating its function of legislation to a person clothed with its authority and speaking in its name.

This view has in fact been held by some writers. That it is, however, an erroneous view will appear, when we come to scrutinize the Roman facts as the Romans understood them, and the English facts as they were understood in the fifteenth century. Delegation by the supreme legislative authority to some officer or magistrate no doubt may, and frequently does, take place. In England, for example, Acts of Parliament sometimes commit the duty of making rules to an official, such as the Lord Chancellor, or to such a body as the Council of Judges of the Supreme Court of Judicature, or to the Privy Council, that is to say, to a Minister advised by his permanent official staff, who procures the approval of the Crown in Council to what he issues in the form of an Order in Council[113]. Where the function is so delegated, the rules or ordinances made in pursuance of the statute have the full force of the statute that gave power to make them. Here the phenomenon is too common and too simple to need explanation or discussion. It is quite another thing to maintain that the legislative action of the Magistrate is always of this character, a mere instance of the exercise of delegated power. The view is not historically true of the Roman Magistrate—Praetor, Censor, Aedile, or whatever else he may be, firstly because he did not in fact receive any such delegation from the people; secondly, because nobody supposed him to have received it. He was always distinctly conceived of as acting by his own authority, whatever that may be, a matter to which we must presently return. It is not true of the English Judge—whether of the _iudices terrae_ of the Common Law Courts when they take shape in the twelfth and thirteenth centuries, or of the Chancellor of the fifteenth, or of indeed their modern successors, seeing that the theory of the English law and constitution has remained in these points, at least, substantially unchanged. That theory is that the judges of the Common Law Courts are nothing more and nothing less than the officers who expound and apply the Common Law, a body of usages held to be known to the people and by which the people live, usages which existed, in their rudimentary state, as far back as our knowledge extends, most of which have not been formally embodied in any legislative act, but which have been always recognized as binding. Such customary rules are not law because they are declared to be so by the judges; on the contrary the judges enforce them because already, antecedently to their decision, binding law. The judges have never received delegated authority from Parliament. So far as authority has been delegated to them it is the authority of the Crown. But the Crown cannot empower them, and never purported to empower them, to make the law. This is abundantly clear regarding the Common Law Courts, who are merely the exponents of the customs of the land.

Footnote 113:

Orders in Council are also issued in certain cases under the prerogative of the Crown without statutory delegation.

The case of the mediaeval Chancellor is rather different. He is rather more than an exponent of the law. He virtually creates law by his executive action. But he does not do so by any expressly delegated power. At a time when it was well settled that the Crown alone could not (except possibly in some few directions—and even this was not admitted by the House of Commons) legislate, Parliament, so far from giving even by implication any authority to the Chancellor, was jealous of and tried to fetter his action. To allege that what are called the legislative functions of any English judge arise from a commission given him by the Supreme Power, _i.e._ Parliament, to exercise them, is an inversion of historic truth and legal doctrine, an attempt to support a false theory by imaginary facts[114]. It is easier and safer to look at our system in the aspect it bore to those who witnessed the earlier stages of its growth, and to recognize the existence of a peculiar form of law-making—that which naturally and inevitably arises out of the application and administration of the law, especially where that law is largely customary, not embodied in formal declarations of a sovereign’s will. If therefore we are to have a theory of the position of the Magistrate or Judge, a definition of his functions, we must rather call him (however vague the expression may appear to those who prefer the phantom of precision to the substance of truth) the recognized and permanent organ through which the mind of the people expresses itself in shaping that part of the law which the State power does not formally enact. He is their official mouthpiece, whose primary duty is to know and to apply the law, but who, in applying it, expands it and works it out authoritatively, as the jurists do less authoritatively. He represents the legal intelligence of the nation, somewhat as upon one theory of papal functions the bishop of the old imperial See represents the religious intelligence and spiritual discernment of the Christian community on earth; and therefore, like the Pope, he represents the principle of that development which it is his function to guide. As the Romans call their Praetor the living voice of the law, so is the Magistrate always, in England as at Rome, the voice whereby the people, the ultimate source of law, shape and mould in detail the rules which seem fitted to give effect to their constant desire that the law shall be suitable to their needs, a just expression of the relations, social, moral, and economic, which in fact exist among them. The Magistrate is by no means their only voice, for they also express themselves, especially upon urgent questions, by direct legislation; and the more they get accustomed to do so, the narrower does the province of the Magistrate become. But there are many things which legislation cannot do in the earlier stages of a State’s growth, partly because proper machinery is wanting, partly because political dissensions intervene, partly because legal ideas are still fluid, fluctuating, and unfit for expression in terms at once broad and definite. Moreover, in even the most highly organized States, some things always remain which a legislature cannot conveniently deal with, or where its action needs to be constantly supplemented, and perhaps even corrected, by some organ which can work in a more delicate and tentative manner.

Footnote 114:

If the view in question is defended as being if not historically true yet a convenient analysis of the actual facts of the case in modern England, the answer is that the Judge, as we know him to-day, can be represented as a delegate of Parliament only by arguing that Parliament commands whatever it does not forbid—a way of making facts square with a pre-conceived theory, which is not only opposed to English traditions, but essentially unreal and fantastic.

So much—that I may not further illustrate what will become clearer from a survey of the Magistrate as he has appeared in history—may be said of Legislation by a State Official in general, whether he be a Roman _Magistratus_ or an English Chancellor. Now let us come to the Roman Praetor.

In the early days both of Rome and of England the administration of justice belonged to the chief magistrate of the State and to the assembly of the people, who in the very earliest days had normally acted together. In England, although the judicial functions of the Assembly survived for some purposes (as they survive to-day in Parliament), the conduct of ordinary judicial work which could not conveniently be exercised by the Assembly passed to the king, and when judges appeared, they were his officers. In Rome also the king was the head of the judicial system: and when the kingly office was abolished, the functions that had been his were transferred to the two Consuls, who were virtually annual kings. After a time, owing to political disputes which need not be described here, a third annual magistrate was added, called the Praetor[115], who, while capable of exerting nearly all the executive power of the Consuls, received the administration of justice as his special province. As the city grew and litigation increased, more Praetors were added. The first had been appointed in B.C. 367; the second, who presently became charged with suits in which one or both of the parties did not enjoy Roman citizenship, dates from about B.C. 247. He came to be called _Praetor peregrinus_, while the original Praetor was described as the Praetor of the City (_urbanus_). The latter remained the head of the judicial system, and I shall therefore speak of the Praetor in the singular. Other Praetors were added, partly in order to act in the provinces, partly in order to undertake special kinds of jurisdiction. By the time of Trajan there were eighteen of them.

Footnote 115:

The name Praetor meant Leader, and was originally applied to the Consuls. The Praetor’s competence for military functions was equal to that of the Consuls. He had both _imperium_ and _iurisdictio_.

In the later republican period we may speak of the Praetor as being partly a Judge, partly a Minister of Justice who directed the general working of the Courts. It was his duty to issue when he assumed office a statement of the rules by which he intended to guide his judicial action during his year, as well as a table of the formulae in which applications ought to be made to him for the exercise of his functions. These rules were published in a document called the Edict. It contained a concise statement of the cases in which he would allow an action to be brought, and of the pleas which he would admit as constituting defences to actions. This statement did not purport to supersede the old actions and rules which had either come down as a settled part of the ancient customary law, or had been enacted by any statute of the popular assembly. The Praetor always held himself to be bound by statutes[116]. But his Edict added materially to the old actions and rules, incidentally modified them, ultimately did supersede many of them. He awarded remedies which the older law had not awarded. He recognized defences (_e.g._ in cases of fraud) which the old law had not recognized. He provided means of enforcing rights more effective than those which the old law had provided. As the later Romans said, he acted for the sake of aiding, or supplying the omissions of, or correcting, the old strict law, with a view to the public advantage[117].

Footnote 116:

The Praetor, said the Romans, does not make law (_Praetor ius facere non potest_). Yet they also called the rules which emanated from him _iura_ (see Cic. _De Invent._ ii. 22): and the whole body of rules due to his action was in later times described as _ius honorarium_, _ius praetorium_. Sometimes a right resting on _ius_ is contrasted with one depending on the protection (_tuitio_) of the Praetor: Ulpian in _Dig._ vii. 4. 1. Those who put the Praetor’s authority highest called the Edict _lex annua_, says Cicero, _Verr._ ii. 1. 42. This uncertainty of language corresponds to the peculiar character of these rules, which in one sense were, and in another were not, Law.

Footnote 117:

‘Ius praetorium est quod praetores introduxerunt adiuvandi vel supplendi vel corrigendi iuris civilis gratia propter utilitatem publicam.’ Papinian in _Dig._ i. 1. 7.

Each Edict was valid only for the Praetor’s year of office. Each succeeding Praetor, however, usually repeated nearly all the declarations that had been contained in the Edicts of his predecessors, though it often happened that a new Edict introduced some improvement in point of form and expression, or perhaps so varied, or added to, the announcements in the last preceding Edict as to introduce an improvement in substance, for when a Praetor thought that it was necessary to promise a new remedy by action, or to recognize a new plea, it was his duty to insert it. In this way the practice of the Courts was continually changing, yet each single change was so slight that the process was very gradual, hardly more rapid than that which has gone on, at certain periods in the history of English law, through the action of the Court of Chancery, or that which went on in the Court of King’s Bench under Lord Mansfield. There was no permanent enactment of a new rule, for a Praetor’s declarations bound himself only and not his successors[118]. But as his promises were usually repeated by his successors, a Praetor when he promised a new remedy, practically created a new right, or enlarged and confirmed an old one.

Footnote 118:

His declarations did not originally, in strictness of law, bind even himself, and it was found necessary to enact, by a _lex Cornelia_ of B.C. 67, that the Praetor should not depart from the statements of his Edict (‘ut praetores ex edictis suis perpetuis ius dicerent, quae res cunctam gratiam ambitiosis praetoribus qui varie ius dicere solebant, sustulit.’ Ascon. _in Cic. Pro Cornelio_, 58.)

The Edict regularly issued at the beginning of each year was called _Edictum perpetuum_, as opposed to _Edictum repentinum_, one issued for an emergency.

To us moderns the function thus committed to a Magistrate seems a large function, and his power a possibly dangerous power. No modern constitutional State would vest such a power either in a Judge or in a Minister of Justice. But to the Romans the Praetor is (above all things) the representative of the Executive and Judicial Power of the State. He is the State embodied for certain purposes. He is something more than a mere minister, whom the people have chosen to serve them in a certain capacity. He represents the majesty of the State over against the people, and deals with them rather as a Ruler than as a Servant. Few nations have formed so strong and definite a conception of State power as the Romans did; and none, perhaps, expressed it so distinctly in the authority, very wide, very drastic, and yet eminently constitutional, which they entrusted to their great State officials. The conception was to them so dear, or so necessary, that even when the misdeeds of a monarch had led to the abolition of monarchy, they did not restrict the magisterial power itself, but divided it between two co-ordinate magistrates whose co-existence made each a check on the other; and when the powers of these two (the Consuls) were subsequently found to need limitation, they devolved upon other magistrates (the Tribunes) the right to step in and check the exertion in some particular instance of the consular power.

The Praetor, therefore, having (like the Consul) _imperium_ (_i.e._ the power of issuing commands as an executive officer, and of compelling obedience to them by putting forth material force), is a stronger personality than the English Common Law Judge, and can act more boldly and more effectively. We hear of no demand for a restriction of his functions, but only of a statute which checked arbitrary discretion by requiring him to administer the law in accordance with his Edict. Moreover, while the English judge is, down till the Revolution, an official removable by the Crown, the Praetor has no one over him, and has, therefore, not only a more unfettered discretion in carrying out his judicial and quasi-legislative mission, but also a clearer sense of his duty to do so, because this is the function which the nation expects him to discharge. The English Judge is primarily a judge, appointed to pronounce a decision: the Praetor is also an executive magistrate, placed at the head of the whole judicial administration of what was originally a small community, with the duty of providing that the system works properly. His wider powers give him a sense of the obligation laid on him to see that justice is duly done, that the system of procedure is such as to enable justice to be done, that wrongs for which there ought to be some remedy have some remedy provided against them; in short, that the law as a machinery for setting things right and satisfying the demands of the citizens is kept in proper order, with such improvements and extensions as the changing needs of the nation suggest. His business is not merely to declare the law but to keep the law and its machinery abreast of the time.

The functionary who in England offers the nearest analogy to the Praetor, an analogy which has been so often remarked that only a few words need be spent on it, is the Chancellor. The Chancellor of the fourteenth, fifteenth, and sixteenth centuries was the organ of the prerogative of the Crown on its judicial side, and as that prerogative was then very wide, he was thus invested with an authority half judicial, half administrative, not unlike that of the Roman magistrate. As it belonged to the Crown to see that justice was done throughout the realm, and the means for doing it provided, the Chancellor was expected and obliged to supply new machinery if the old proved inadequate, and this he did in virtue of an authority which, in its undefined width and its compulsive power, resembled the Roman _imperium_. Accordingly when the development of the Common Law Courts stopped in the fourteenth century because the Common Law judges refused to go beyond the remedies which the Courts provided, and made only a limited and timid use even of their power of issuing new writs _in consimili casu_, the Chancellor went on. From the time of Edward the Third petitions to see right done, which had been previously addressed to the Crown, began to be addressed to the Chancellor, and the extraordinary range of his powers was expressed by the phrase that he acted in matters of the King’s grace and favour, that is to say, he acted where the subject could not demand a remedy as of common right from the ordinary Courts of the land. Thenceforward the range of action of the Common Law Courts did not so much need to be extended, though a certain slight measure of development continued in them even as late as the days of Lord Mansfield, whose extension of the scope of the ‘Common Counts for money had and received to the use of the plaintiff’ has a faint flavour of praetorian methods. It was partly because the Common Law judges had halted that the Chancellor, if I may use a familiar expression, took up the running, and exerted the powers which the sovereign entrusted to him, and which, as keeper of the sovereign’s conscience, he was held to be justified in exerting so as to provide fresh and efficient remedies for wrongs that defied either the rigid system of procedure or the feeble executive capacity of the Common Law Courts. During this period the Chancellor, though a judge, is also much more than a judge, and it is as a great executive officer, clothed with the reserved and elastic powers of the sovereign, that he is able to accomplish so much. Yet his action is not so free as was the Praetor’s, for he does not directly interfere with the pre-existing Courts. He may walk round them: he may forbid a plaintiff to use the judgements they give; but he cannot remould their methods nor extend their remedies. The Praetor, on the other hand, is in a certain sense the head of all Courts, so that his action covers the whole field of law. After a time, however, the creative energy of the Chancellor slackens, partly because the prerogative of the Crown was being narrowed, partly, apparently, from the example of the other Courts, for when Chancery decisions also began to be reported like those of other tribunals, he naturally felt himself more and more fettered by the record of the decisions of his predecessors. In the eighteenth century, precedents gather round the Chancellor and fence him in: he cannot break through so as to move freely forward on new lines of reform. He is like a stream which, as it deepens its channel, ceases to overflow its banks.

Before I note a further point of difference between the Praetor and our English Judiciary, and a further reason why the development of the law by the latter was so much less bold, I must advert to one feature which the Roman and English systems have in common. In both law is made through the control of procedure. The Praetor promises to give a certain action, or allow a certain defence, in certain states of fact; _i.e._ if a plaintiff alleges certain facts, the Praetor will allow him to sue, and will see that judgement is given in his favour should those facts be proved, while if a defendant alleges certain facts, the Praetor will allow these to be set forth in a plea, and will see that judgement is given in his favour if the facts as stated in the plea are proved. Similarly the English Courts are concerned not with abstract propositions of law, but with remedies. It is by granting a remedy, _i.e._ by entering judgement for the plaintiff or the defendant in pursuance of certain reasons which they deliver publicly, that the Courts become sources of law. And though the Chancellor goes further than the Common Law Courts, because in the early days of his action he laid hold of a person under circumstances to which no rule of law had been previously declared to apply, and compelled him to appear as defendant in a suit, yet the Chancellor also never delivers a legal opinion except for the purpose of explaining the decree which he issues for adjusting the rights of the parties to a concrete dispute. So far, therefore, the Roman and the English officials moved on similar lines. Both were concerned with remedies; both acted through their control of procedure.

V. THE SYSTEM OF PRAETORIAN EDICTS AS COMPARED WITH ENGLISH CASE LAW.

Now, however, we arrive at a material difference between the Roman and the English Magistrates. The English judge never goes beyond the concrete case which is before him. If he declares the law, he declares it by deciding on the particular question which has arisen between two individuals. He may incidentally, if so minded, deliver a lecture on the law bearing on the subject, and may pass in review all the cases cited in argument. Still, his judgement is not intended to go beyond what is absolutely necessary for the settlement of that question, and his view of the law is not authoritative so far as it strays into cognate but distinct topics. It is only the _ratio decidendi_ that can be quoted as an authority. No _dictum_ thrown out incidentally is of binding force; and those who in the future have to deal with his decision are often able to narrow down the _ratio decidendi_ to a very fine point, and show that it turned so much on the special facts of the case as to be of little importance as a precedent. But the Praetor speaks generally. In the Edict which he issues at the beginning of his term of office he lays down a rule, intended from the first to be applicable to a large class of cases; or, to speak more exactly, he makes a promise and announces an intention of dealing with a large class of instances. If the class were not a large one, he would not think it worth while to announce such an intention. He is thus led to take much more bold and conspicuous steps, and he may effect at one stroke a larger reform than any single decision of an English Court can ever cause. He is far more distinctly aware of the fact that he is, though not formally legislating, yet taking action which may have the effect of changing the substance of the law.

In other respects also, the fact that the Praetor’s changes are formally enounced in his Edict potently and beneficially influenced his reforming action. He was obliged to generalize and summarize. Where he had to set aside an ancient rule which had begun to be mischievous and deserved to be obsolete, instead of merely nibbling away at the edges of it as our English judges were apt to do, he dealt with it in a broad and intelligible way, either superseding it altogether or laying down certain marked exceptions in which he declined to follow it. When he was establishing a new rule he had to consider how wide a field he desired to cover, what sets of instances were to be provided for, what was the common principle underlying those instances, how that principle must be expressed so as fairly to include them without including others which he had no wish to touch. The chief merit of a rule of law is that it should seize a feature which a large set of instances really have in common, and should effectually provide for them and for them only. The Praetor was moreover at the same time driven to be terse in the formulation of his promises, because the Edict was by tradition a comparatively short document, observing that stern brevity which the famous example of the Twelve Tables had made familiar and excellent in Roman eyes. Thus the results of his reforming action, the advance made at each step in the development of the law, were always presented in a clear, a comprehensive, and above all a concise form, so that the profession perceived exactly what had been done, were able to take the Edict as a subject for commentary and elucidation, and as a starting-point for further improvements. It was thus that the jurists treated it, seconding while also controlling by their opinion the action of the chief magistrate. He draws with a bold yet careful hand the outlines of the picture. They fill in the details, and so work round and over each of his summary statements as to bring out more fully all that it contained and involved, to trace his principles into their consequences and to illustrate their application. The action of the jurists was as essential to him as he was to them, for while their advice often prompted him, and while their elucidations and teachings developed the meaning and contents of what he laid down, their criticism reprobated any hasty or inconsequent steps into which zeal or self-confidence might betray him. Nor did such criticism remain fruitless. For it will be remembered as another feature of the Roman edict-issuing system, and indeed one of its most singular features, that each Edict was issued by each magistrate for his one year of office only, and had no validity thereafter. This was so because he was not conceived to act as legislator, but only as an administrator whose commands, though they are not law in the strict sense, must be obeyed while his power lasts. At the end of the year they cease with that power, but his incoming successor may of course repeat them and give them another year of life, and so on from year to year and from generation to generation.

Thus the Edict, so far as it can be called legislation, is tentative legislation. It is an experiment continually repeated; an experiment whose failure is a slight evil, but its success a permanent gain. Suppose the Praetor Sempronius to have introduced a new sentence into his Edict, promising to give an action in a particular set of cases. The profession doubt the merit of the sentence, canvass it, observe how it works, and before the end of the year come to one of three conclusions. They may approve it, in which case it will doubtless be repeated in next year’s Edict. They may think it fundamentally wrong. Or thirdly, they may hold that though its object was good, that object has been sought in a wrong way. See then what happens if it has been disapproved. Next year a new Praetor—Cornelius—comes into office. In issuing his Edict he either omits altogether the obnoxious addition which Sempronius had made, or he so modifies it as to meet the objection which the jurists have taken. There is here none of the trouble, difficulty, and delay which arise when a statute has to be passed repealing another statute. There are not even those difficulties which occur under our English system when a case wrongly decided has to be overruled.

Observe how that English system works. A decision is given, perhaps hastily, or by a weak Court, which in a little while, especially after other similar cases have arisen, is felt by the bar and the bench to be unsound. There is a general wish to get rid of it, but it is hard to do so. People have begun to act on the strength of it; it has found its way into the text-books; inferior or possibly even co-ordinate courts have followed it; conveyances or agreements have been drawn on the assumption that it is good law. The longer it stands the greater its weight becomes, yet the plainer may its unsoundness be. Cautious practitioners fear to rely on it, because they think it may some day be overruled, yet as they cannot tell when or whether that will happen, they dare not disregard it. Thus the law becomes uncertain, and not only uncertain, but also needlessly complex and involved, for later judges, feeling the unsoundness of the principle which this mischievous case has established, endeavour to narrow it down as far as possible, and surround it by a set of limitations and exceptions which confuse the subject and perplex the student. The matter may have one of three ultimate issues. Either lapse of time and the unwilling acquiescence of subsequent judges put its authority beyond dispute, as Mr. J. W. Smith says of a famous old instance, ‘The profession have always wondered at Dumpor’s case, but it is now too firmly settled to be questioned in a Court.’ Or else, after a while, the point is carried to a Court of higher rank which has the courage to overrule the erroneous decision, and resettle the law on a better basis. Or possibly—though this but rarely occurs—a statute is passed declaring the law in an opposite sense to that of the unlucky decision. But it may be long before the second solution is found, partly because judges are chary of disturbing what they find, holding that it is better that the law should be certain than that it should be rational, and fearing to pull up some of the wheat of good cases with the tares of a bad case, partly because it may be a good while before a litigant appears willing to incur the expense of carrying the point to the higher and more costly tribunal. The third solution can be even less relied upon, for the legislature is busy and cares very little about the theoretical perfection of the law.

Even when the bad decision has been got rid of, a certain measure of harm is found to have been done. The authority of other cognate decisions may be impaired; transactions entered into, or titles accepted, on the faith of the case are shaken. One way or the other the law is injured. But on the Roman system these evils were, not indeed wholly, yet to a much greater extent avoided[119]. Not only is the error of one Praetor easily corrected by his successor, but the occasion recurs year by year on which it must be either corrected or reaffirmed, so that a blemish is much less likely to be suffered to remain. If five or six successive Praetors have each of them in their Edicts repeated the provision introduced by one of their predecessors, men may confidently assume that it will be supported and perpetuated by those who come after, either in its original form or possibly in a more general form which will include its substance. There is no doubt some little temporary uncertainty during the first year or two, before the opinion of the profession has been unequivocally expressed. Such uncertainty can hardly be avoided in any system. But the fact that the Edict is annual gives ample notice that the provision is temporary and experimental, though, of course, fully valid during the particular year for which the Edict is issued. Thus the risk of mischief is reduced to a minimum.

Footnote 119:

A particular case decided in a particular way under a provision of the Edict which was omitted next year would of course not be disturbed, for the Romans held firmly to the principle _stare iudicatis_.

Our data are too scanty to permit us to trace either the first beginnings of the Praetor’s action, or the details of its working, or the changes which must unquestionably have passed upon it during the three centuries and a half when its importance stood highest, say from the end of the First Punic War to the time of the Emperor Hadrian (B.C. 241 to 117 A.D.). Even of the Edict itself, in its latest and most complete form, we have only fragments, and do not know by what stages it was brought to the perfection which led to its being finally settled in a form never thenceforward altered. This took place under Hadrian, when Salvius Julianus, a famous jurist who was Praetor at the time, gave it the shape in which it became permanent, an _Edictum Perpetuum_ in a new sense; it was then enacted by a _Senatus Consultum_, and in the form so enacted it was thereafter quoted and applied. Apparently, however, the effect of its enactment was not to make it a part of the general statutory law, but only to determine the form in which it was thereafter put forth by the magistrates. After that time such Edicts as were issued were special, containing declarations of the imperial will, usually addressed to particular circumstances. They were no longer Edicts in the old sense, but mere imperial constitutions.

It need hardly be said that under the Empire the action of the Praetor, like that of all other magistrates, had been liable to be directed or supervised by the Sovereign or his legal advisers. An interesting illustration of that supervision is worth mentioning, because it also brings into relief the fact that other magistrates, as well as the Praetor and Aediles, enjoyed the power of creating law by their action, which may be called either administrative or judicial, seeing that it united the two characters. Before the time of Augustus there had been no such thing among the Romans as the giving of an inheritance, or a legacy, by means of a Trust, _i.e._ by imposing on the honour and good faith of the person to whom property was left a legal obligation to hand it, or a part of it, over to some one else as the real beneficiary. The practice of asking such a person to carry out the testator’s wish had existed, but he could disregard the wish if he pleased. Augustus, however, on two occasions directed the Consuls (not the Praetor) to enforce such a request by their authority, thereby turning the moral into a legal obligation; and at the same time recognized an informal letter or writing (_codicilli_) as sufficient, where confirmed by a will, to impose a binding obligation on the heir. We are told that, in the latter case, having himself on one occasion performed what a testator had asked him, by way of trust, to do, he summoned a meeting of eminent jurists to advise him, and accepted the advice of Trebatius that the obligation should be held valid. These instances became the foundation of the extremely important changes which made the validity of Trusts, and that of _codicilli_, thenceforward a well-established legal doctrine[120]. As the origin of Roman trust inheritances is due to the action of the magistrates, so English trusts owe their legal force to the Chancellor; and through the operation of the practice of creating them, coupled with the Statute of Uses (27 Henry VIII, c. 10), there grew up the modern system of conveyancing.

Footnote 120:

‘Primus divus Augustus semel iterumque gratia personarum motus, vel quia per ipsius salutem rogatus quis diceretur aut ob insignem quorundam perfidiam, iussit consulibus auctoritatem suam interponere, quod quia iustum videbatur et populare erat, paulatim conversum est in adsiduam iurisdictionem’ (_Inst._ ii. 23. 1). See also _Inst._ ii. 25.

The merits of our English Case Law system are very great. It is an abiding honour to our lawyers and judges to have worked it out with a completeness and success unknown to any other country. They have accumulated in the Reports an unequalled treasure of instances, conjunctions of circumstances raising points of law far more numerous than the most active intellects could have imagined. These points have been argued with the keenness which personal interest supplies, and decided under that sense of responsibility which the Judge feels when he knows not only that his judgement is to determine the pecuniary claims or social position of suitors, but also that it is to constitute a rule which will be canvassed by the bench and the bar, and find its place in volumes that will be studied long after he has quitted this mortal scene. There is therefore a practicality about English Case Law, a firm grasp of facts and reality, as well as a richness and variety, which cannot be looked for in legal treatises composed even by the ablest and most conscientious private persons, who, writing in their studies, have not been enlightened by forensic discussion nor felt themselves surrounded by the halo of official dignity. If the treatises of the great Roman jurists do to a large extent possess these same merits, it is because they too were, in a measure, public officers, and because much of the law they contain arose out of concrete cases[121].

Footnote 121:

Not that all the cases we find in the _Digest_ are concrete cases, for a good many seem to have been imagined for the sake of illustrating the applications of a principle. Cf. the illustrations in Macaulay’s Indian Penal Code.

The characteristic defects of Case Law which must be set against these merits are two. There is, first of all, its frequent uncertainty. As has been remarked already, one must always assume a certain percentage of ill-decided cases which it is hard to get rid of. And it may often happen that a particular point, which specially needs to be determined in the interests of legal science, remains for years, or even centuries, unsettled, because it is never brought before the Courts in a neat form which raises just the issue that wants settling. Sometimes it hardly matters which way the decision goes: the important thing is to have a decision, yet there is no means provided of getting one, unless by invoking the legislature, which is usually too much occupied with political controversies or administrative problems to care for settling such a point. And secondly there is the utterly unsystematic character from which Case Law necessarily suffers, and which it necessarily imparts to the whole law of the country. This defect is too familiar from everyday experience to need any illustration. It is the capital defect, one might say almost the only defect, of the law of England; and people have so long talked in vain about remedying it by means of a Code, that they have at last grown tired of the subject, and seem to be settling down into despair. I refer to it for the sake of pointing out how the institution of the Roman Praetor met a similar danger. The Romans had, to be sure, no great turn for scientific arrangement—their efforts at codification and the structure of their legal treatises show that—but the Praetor’s Edict had the immense advantage of presenting all the gist and pith of the newer law in a compact form, clearly and concisely set forth. The Edict thus became a centre round which the jurists could work, a point of departure for all further legislation, a main line of road running through the network of lanes, courts, and alleys that had been built up by a multitude of statutes and treatises. It was capable of being constantly amended and extended so as to take in all changes in the law, while yet retaining its own character; and it gave a unity, a cohesion, a philosophical self-consistency to the Roman law which it must otherwise have wanted even more than does our own. A German writer has somewhere remarked, in commenting on the crude and fragmentary character of the Roman Criminal Law, with whose development the Praetor had comparatively little to do, that the faults of that branch of legal science show how absurd it is to ascribe the merits of Roman jurisprudence to any special gift for legislation bestowed by Heaven on the Roman people. The excellence of their private civil law is (he observes) due simply to the fact that they had the good sense, or perhaps the good luck, to have provided in the Praetorship an office specially charged with the duty of constantly amending the law so as to bring it in accord with the growing civilization and enlarging ideas of the people. There is much truth in this. The Romans, however, did not invent their Praetor with any such conscious purpose. Their merit was that, when they saw him occupied in developing the law, they gave him free scope, and supported him in his beneficent work. He is a unique figure among the law-making organs of the nations. Since he is the choice of the people, he is able to do things which the minister of an absolute monarch might prudently shrink from doing; and the people permit him to retain his functions, even in days when the habit of directly legislating had so much increased that it might have been supposed that legislation would restrict or supersede his action. No modern republic would vest such power in an official, nor would any modern monarch be permitted by public opinion so to vest it.

Nevertheless, though he belongs to a world which cannot return, the Praetor’s career may suggest to us that every civilized nation ought, in some way or other, to provide an organ representing its legal intelligence which shall mould and supervise the gradual and symmetrical development of its law. It may be suggested that all modern States do provide such an organ in their legislatures, whose business is largely, in some instances almost entirely, that of making law, and which presumably contain the most capable men whom the nation possesses. When we have considered the conditions under which legislatures work, as I propose now to do, we shall be better able to judge how far they fulfil the function which the Praetor discharged at Rome.

VI. DIRECT LEGISLATION AT ROME.

A. _The Popular Assembly._

We have now compared the organs and the methods of legislation which existed in the Roman Republic and Empire with those of England, so far as relates to the action of the jurists, magistrates, and judges. Taking first the Roman jurisconsults and authors of legal treatises, it was suggested that their English analogues were rather to be found not so much in text-writers as in the judges, the result of whose labours is preserved in the vast storehouse of the Reports; while in considering the action of the Roman Magistrates, especially of the Praetor, in the creation of law, stress was laid on the advantages which the peculiar position of this great head of the whole judicial system presented for the gradual and harmonious development of legal rules, an advantage which the disconnexion of the Chancellor from the Common Law Courts did not permit in England. This led to an examination of the English method of developing and amending of the law by the decisions of the Courts, a method which, if it loses something in point of symmetry, has the advantage of providing an unrivalled abundance of materials for the determination of every question that can arise, and of subjecting each disputable point to the test of close and acute scrutiny.

We may now go on to examine another mode of creating law, that namely which proceeds immediately from the supreme power in the State, and which may, as contrasted with the indirect creation of law by jurists, or magistrates, be called Direct Legislation.

The organ of such direct legislation is the supreme authority in the State, whether such authority be a Person or a Body, whether such body be the council of an oligarchy or a popular assembly, and whether such popular assembly be primary or representative.

The method whereby Direct Legislation is enacted is the public proclamation (usually, and now invariably, but of course not necessarily) in writing by the Supreme Authority, of its will as intended to bind the citizens and guide their action. And the result is what we call Statute Law as opposed to Common Law. The distinction is a familiar one to both nations. The later Romans contrast _Ius_ and _Lex_[122]: we contrast Common Law and Statute.

Footnote 122:

By the time of Justinian the distinction had come to be between _Ius_ as the old Law, including republican statutes, Senatus consulta, the Edicts of magistrates and the writings of the jurists, and the new Law, which consisted of imperial ordinances, and was called sometimes _Ius Novum_, sometimes _Leges_.

Let us first inquire what were, at different periods in the long annals of the Roman State, its various organs of direct legislation, and how each of them worked. It is of course only in outline that so large a subject can be treated.

The Roman State lasted 2,206 years—from the unauthenticated ‘founding of the city’ (for which I assume the traditional date of B.C. 753) down to the well authenticated capture of Constantinople by the Turks in A.D. 1453. Some would carry it down to 1806, and thus give it a life of 2,559 years, but the feudal Romano-Germanic Empire is such a totally different thing in substance from the Empire at Rome or at Constantinople, that although its sovereigns often claimed to legislate after the manner of Constantine and Justinian, nothing would be gained by bringing it and them within the scope of our inquiry. Now during this long period of two and twenty centuries, from Romulus to Constantine the Sixteenth, three such organs were successively developed. The first was the popular assembly of the citizens; the second, the administrative council of magnates and ex-officials; the third, the autocratic monarch. The first co-existed for a certain time with the second, the second with the third. The rights of the first and the second seem to have never been formally extinguished, even when the third had become in practice the sole source of law. Still we may, with substantial accuracy, limit the action of the first to the republican period, that of the second (so far as properly legislative) to the earlier two centuries of the imperial monarchy, while in later ages the third alone need be regarded.

As I am not drawing a historical sketch, but merely attempting to point out how each organ acted in producing law, I shall not stop to discuss any constitutional questions as to the rights or powers at various times of these organs respectively, but shall assume each to have been in its own day duly recognized as competent to legislate. That is the view presented to us by Gaius (writing in the second century A.D.) and in the _Digest_ and _Institutes_ of Justinian enacted in the sixth century A.D. The Emperor says, ‘The written law consists of statutes, resolutions of the _plebs_, decrees of the Senate, the ordinances of emperors, the edicts of magistrates, the answers of jurisconsults[123].’ We have already considered the two latter, and have now the four former kinds of legislation to examine, all of which may be called, in a wide sense of the term, Statutes, _i.e._ declarations of the will of the State formally promulgated as law.

Footnote 123:

‘Scriptum ius est lex, plebiscita, senatus consulta, principum placita, magistratuum edicta, responsa prudentium. Lex est quod populus Romanus senatore magistratu interrogante, veluti consule, constituebat: plebiscitum est quod plebs plebeio magistratu interrogante, veluti tribuno, constituebat’ (_Inst._ i. 2. 3, 4).

The legislative power of the Roman people was exercised, during the Republic, through three assemblies, those of the curies (this soon lost all practical importance), the centuries, and the tribes. Passing by the interesting and difficult questions as to the composition of these bodies, their respective functions, and the time when each may be said to have acquired or lost its authority, we may remark several features which they had in common, and which impressed a peculiar character on the laws that emanated from them. The differences between them do not affect the points to which I am going to call attention. All these _comitia_ (literally, meetings) are Primary assemblies, that is to say, they are not representative bodies, but consist of the whole body of citizens, just like a Homeric ἀγορά, an Athenian or Syracusan ἐκκλησία, Frankish _mallum_, an Old English Gemot, an English seventeenth-century Vestry, a New England Town Meeting, an English Parish Meeting under the Local Government Act of 1894, an Icelandic Thing, a Basuto Pitso. The Roman assemblies are, therefore, large bodies consisting of thousands, often many thousands, of persons, and fluctuating bodies, in which not always the same persons will be present, and in which those who live near the place of meeting will tend to preponderate. Further, they are—and this is a remarkable feature of the Roman system—bodies composed of minor bodies, and determining their decision by a system of double voting. Each individual votes in the group to which he belongs, _curia_, _centuria_, or _tribus_, as the case may be; and it is by the majority of curies, centuries, or tribes that the decision of the assembly as a whole is given, the collective voice of each of these groups being reckoned as one vote, and a small group having as much weight as a large one. Thus there may be a majority of group votes for a proposition while the majority of votes of individuals is against it. This mode of voting, unfamiliar to modern political constitutions, survives in the Rectorial elections of two (Glasgow and Aberdeen) of the four Scottish Universities, where the students vote by ‘nations’; and it has sometimes happened that a person is on this method chosen to be Lord Rector against whom a majority of the votes given by the individual electors has been recorded[124]. So under the Constitution of the United States, when no candidate for President has received a majority of the votes given, the House of Representatives chooses one of the five candidates who has received most votes, and in doing so the House votes by States, _i.e._ the majority of the Representatives from each State determine the vote of that State, and the majority of States (not of individual Representatives) prevails. Thirdly, these assemblies can be convoked and presided over only by a Magistrate, and their action may be stopped by another Magistrate. Fourthly, no discussion takes place in them. They meet only to vote on propositions submitted by the presiding Magistrate, who alone speaks, and who speaks only to put the question. Fifthly, they vote once only, and that vote is final and supreme, requiring no assent of or confirmation by any other body, but operating directly to create a rule binding all members or subjects of the State.

Footnote 124:

See 52 & 53 Vict. c. 55, § 14, subs. 4.

Such a machinery seems almost as if calculated either to check legislation by throwing obstacles in its way, or else to make legislation hasty and imprudent. The passing of a long measure or a complex measure might be thought scarcely possible under it; while at the same time it secures no opportunities for criticism and revision, and for the reconsideration at a future stage of decisions too hastily taken when the measure was first submitted. Thus there would appear to be a double danger involved in such a system, the danger of not moving at all, and the danger, when the people do move, of going too fast and too far. It must be remembered, however, that not very much direct legislation was needed. The improvement of ordinary private law was for the most part left to the Praetor and the jurists, while one great branch of modern legislation lay almost untouched during the Roman Republic, that of the regulation of powers and functions of administrative departments. There was comparatively little general administrative law in our modern sense in Italy, because in Rome the magistrates and Senate had a pretty wide discretion, and through the rest of Italy the local communities managed their own affairs. So too in the provinces administration was left either to the local municipalities or to the Roman governors, proconsuls, or propraetors.

Even if the method of legislating which these assemblies followed be deemed ill fitted to secure that the merits of any change in the substance of the law should be carefully weighed, it need not have been equally deficient in making it excellent in point of form, _i.e._ clear, consistent, symmetrical. In this respect the absence of means for discussion and amendment may have worked for good. Statutes enacted in the form in which they have been originally proposed are more likely to be plain and simple than those which have been cut about, pared down, and added to by the action of some revising Committee or of a Second Chamber, probably dissimilar in opinion from the First Chamber, possibly disposed to differ for the sake of differing. The volume of direct legislation may, under a system like that of Rome, be comparatively small. But the fewer changes in the law are made by statute so much the better for the harmonious development and inner consistency of the whole body of law, which suffers far less often from permitting the survival of an occasional anomaly or absurdity than from frequent tinkering, that is to say, from the introduction of exceptions to general rules, or the multiplying of provisions for special cases. So far, therefore, as quantity is concerned, the small amount of legislative work which the Roman _comitia_ turned out was a matter for satisfaction, not for regret.

As respects the quality of that work, the character of the Assembly produced some remarkable consequences. That it might be understood and approved by the ordinary citizens, the bill proposed must be comparatively short, terse, clear. In many cases it would have been previously discussed at public meetings, which the magistrate could summon; but those who would attend the meetings might be but a small proportion of those called upon to vote in the _comitia_. As it could not be amended by the Assembly, and would reflect credit or discredit on the name of the proposing Magistrate who was responsible for it, it must be prepared with scrupulous care. As it would become operative immediately on its being approved by the single vote of the Assembly, with no opportunity of correcting it at any later stage or in any other legislative body, an error would be serious to the community, and specially damaging to the proposer. Moreover, as it could not be amended in the Assembly, it escaped all risk of having its drafting spoiled and of losing what original merits of breadth, lucidity, logical arrangement, and conciseness of expression it might possess. No one could move to add or to omit a clause. No large principle could be qualified by the insertion of limiting words. No savings for particular cases could be suggested, and possibly accepted in order to buy off opposition. ‘Yes’ or ‘No’ to the whole bill—these were the only alternatives. And the simpler the bill, so much more probable the ‘Yes’; whereas in assemblies with power to amend, a ‘Yes’ has to be purchased by compromises and concessions, which, whatever effect they may have on the substance of a measure, destroy the elegance of its form. The statutes passed by the Roman people had, therefore, owing to these causes, three great merits. There were few of them. They were brief. They were clear. We possess fragments, in some cases pretty large fragments, of a good many; and in all the drafting is excellent. The sharp, stern, almost grim conciseness and precision of the Twelve Tables seem to have been always present to the mind of the Roman draftsman as the model he ought to follow.

It is worth remarking that the earliest Roman conception of a _Lex_ or Statute was different from that which we find in the imperial period, as well as from that which any modern jurist would naturally form. The word _lex_ meant in early Latin simply a set form of words; and when applied to an enactment by the _comitia_, it described, not a special kind of legal rule, but merely the expression of the people’s will in set terms. And the original conception of a statutory enactment was that of a contract made between the Citizens in the _comitia_ and the Magistrate representing the Corporate State. Hence the definition of _Lex_ which we find given by Papinian (_Dig._ i. 3. 1), ‘the common covenant of the republic’ (_communis reipublicae sponsio_), probably descends from the old practice according to which the Consul or other presiding Magistrate asked (_rogavit_) the _comitia_ whether such and such was their wish, submitting to them the form of words whereby they were to agree to bind themselves. Just as in the Roman _stipulatio_ the questioner asks the promiser whether he promises to do such and such a thing, to which the latter answers, ‘I promise’ (_spondeo_); so the Consul asks the Quirites whether they wish and order that such and such a thing shall be done (_Velitis, iubeatis, Quirites?_), whereto the citizens answer, ‘Be it as you ask’ (_Uti rogas_). Thus the first (or at any rate a very early) form in which the notion of a formally enacted, as distinct from that of a Customary, Law emerges in Rome is that of a Contract.

The Romans were like the English in this, that they seldom did anything formally till it had for a great while been done practically. Long after the power of legislation had passed in substance from the king of England to his subjects represented in his Great Council, the forms of the Constitution continued to suggest that the monarch was still the prime agent in legislation. To-day the so-called Royal Veto, which ought rather to be called the right of the Crown to take further time to consider the resolutions of the two Houses, subsists in theory unimpaired, though it has not been exercised since 1707. So when actual power passed from the _comitia_ to the Imperator in the days after Julius Caesar and Augustus, the rights and functions of the Assembly were not formally extinguished. Magistrates continued to be elected by the _comitia_ till the accession of Tiberius, and the right of legislation remained for a great while afterwards legally vested in them. Statutes appear to have been passed by them as late as the time of Nerva. The _comitia_ themselves died out by obsolescence, without being ever formally abolished, and apparently they went on meeting occasionally in a purely formal way long after they had ceased to be a reality, just as the name _Respublica Romana_ survived in documents and inscriptions when the old associations it evoked had been forgotten[125]. And the popular assemblies died out all the more quietly because they had never met of themselves, by simple operation of law. Like the English Parliament, but unlike the American Congress and the Chambers of some European countries, they needed to be convoked by the Executive[126].

Footnote 125:

I saw a few years ago, in the ruins of Salona in Dalmatia, a lately uncovered inscription, dating apparently from the sixth or seventh century A.D., in which the protection of God is asked for the ‘respublica Romana.’ It need hardly be said that the term has in strictness nothing to do with the form of government, no more than has our English term ‘Commonwealth.’

Footnote 126:

The Crown is now in England bound by statute to summon Parliament, but should the Crown omit to do so, Parliament could not legally meet of itself, save that upon the demise of the Crown it does forthwith come together to swear allegiance to the new Sovereign.

VII. DIRECT LEGISLATION AT ROME.

B. _The Senate._

When legislation by these assemblies ceased the turn of the Senate came. This body, a Council of Elders as old as Rome itself, perhaps in its original form corresponding to the Council which surrounded the Homeric king, seems to have claimed, even during the Republic, the right of general legislation, a right which the popular party denied, and which was probably not well founded in law, although its undoubted competence to issue administrative decrees for temporary purposes made the claim plausible, and raised many questions of delicacy and difficulty regarding the exact limits of its power. Moreover the Senate, whose proper function was to advise the magistrates, came to have a sort of ill-defined authority over them, and they often found it prudent to shelter themselves under that authority; so sometimes a resolution directing a magistrate to take such and such a course might be quoted as possessing legal validity, especially if the course was one which lay within the scope of his official discretion. The whole subject was full of uncertainty, and a controversy seems to have gone on among constitutional lawyers regarding the Senate’s powers, similar to that which long raged in England over the so-called dispensing power of the Crown[127]. When the _comitia_ ceased to be convoked, except occasionally as a matter of form to give effect to the monarch’s will, it was natural that the legislative functions of the Senate should win full recognition, for they furnished exactly the method of legislation which the Emperors desired. As the Roman State remained a republican commonwealth in theory and in strict intendment of law long after it had passed under the sway of a monarch, and as it was the object of the monarch to keep up this theory, he found it easy and safe to act through the Senate, which (though absolutely obedient to him) still wore the air of an independent body, rather than in his own person, ample as was the magisterial authority wherewith he was clothed. Thus the Senate at the same moment acquired power and lost it. It became recognized as entitled to make law, but it found itself the mere instrument of the Emperor for that purpose. From the time of Tiberius down to that of Hadrian, many laws were passed by the Senate; and though its action became thenceforward less frequent and less important, its rights lasted as long as it lasted itself, that is to say, till it died out in the disorder of the seventh century. They are referred to by Justinian as if still existing, but we do not hear of any practical use made of them in his time. One of the latest measures ascribed to the Senate is, oddly enough, a decree for regulating the election of Popes, and preventing tumults thereat.

Footnote 127:

This is illustrated by the words of Gaius, ‘Senatus consultum legis vicem obtinet quamvis fuerit quaesitum’ (Gai _Inst._ i. 4). Ulpian however says, ‘Non ambigitur senatum ius facere posse’ (_Dig._ i. 3. 9). It too exerted a sort of dispensing power: cf. Sallust, _Cat._ 29.

The Senate was in most respects much better fitted for legislative work than the popular assemblies had been, indeed than most assemblies have been in any country. It was composed of men of mature age, versed in affairs, many of them having filled high office, others having served as judicial referees, if we may so render the term _iudices_; all therefore, or nearly all, possessing some knowledge, and many a large knowledge, of law and of administration. It was large enough to comprise persons of very varied experience, while small enough (in normal times) to be business-like, and to avoid the danger of degenerating into a mob[128]. Like the _comitia_, it voted only once on a proposition, and that one vote was sufficient to pass a law. Again like the _comitia_, it could only deal with what the magistrate brought before it, private members having no initiative. But, unlike the _comitia_, it could debate a proposition and make amendments thereto; that is to say, when a particular draft measure was submitted, it was able, being thereby seized of the matter, to reject the proposition as drafted, and to pass one containing different provisions. There does not seem to have been anything analogous to our English system of going into Committee, and afterwards making a report to the House; but, as the decrees submitted were short and simple compared to those which the British legislature deals with, the method of amending the proposal submitted, or debating and passing an alternative proposal, was doubtless sufficient for the needs of the case. What was lacking to the Senate was not machinery, but force. It was a tool in the hands of the Emperor, and was used by him as a means of formally enacting and promulgating measures on which he had already decided. His influence soon came to be so fully recognized that the later lawyers sometimes cite not the _Senatus consultum_ itself, but the speech (_oratio_) in which the Emperor proposed it to the Senate, although in these cases the legal validity of the law seems to be attributed to the vote of the Senate. After Hadrian it would appear that legislative decrees were always passed at the instance of the monarch.

Footnote 128:

Though Augustus found over a thousand members in it, many of them unworthy, and was obliged to purge it carefully down to a reasonable strength (Sueton. _Octav._ 35). Whether there were senators with no legal right to speak but only to vote—they voted, as in the English Parliament, by dividing into two bodies—is matter of controversy. There was no closure, so senators used to talk against time.

Under an indulgent Emperor, and in matters of ordinary private law, there might of course be no great reason why amendments should not be suggested or even opposition made, by an active senator, to bills proposed by the presiding magistrate, although the magistrate himself was usually merely the mouthpiece of the monarch. But the habit of servility grew so fast, that even this remnant of independence seems to have soon become rare. Nothing was so dangerous as to give offence to a sovereign whose power was restrained only by his good nature.

The checks which have been noted as existing in the case of the _comitia_ on prolixity or obscurity in the terms of a statute, were absent in the case of the Senate. Yet the good habits formed in earlier centuries were not lost. The _Senatus consulta_ which remain to us are favourably distinguished by their clearness and brevity. The ease with which they could be passed, or repealed when passed, does not appear to have led to their being drawn carelessly as regards either substance or form. It may however be remarked that having been originally not so much laws as resolutions of a body primarily advisory, intended to express its opinion, and to guide or strengthen the hands of an executive magistrate, they continued to be couched in language hardly so technical as that of the old _leges_. They are less imperative in form, and often express quite as much in their preamble, which contains the motives that have suggested the decree, as through the more strictly enacting part. Occasionally they approach dangerously near, as preambles are apt to do, to becoming rhetorical declarations of policy.

The _Senatus consulta_ actually preserved, or known to us by name, are less numerous than might have been expected. The same may be said of the _leges_, or rather of such among them as were of general and permanent effect, not mere acts of an executive nature. If we could suppose that the legislative activity of the Roman State had manifested itself only through _leges_ and _Senatus consulta_, it would be hard to understand how that State, developing as it did, could have got on and attained its amazing development in wealth and population with so few legislative changes. The explanation, of course, is that the Praetor and the jurists were doing the main part of the work, just as during the eighteenth century in England the judges and text-writers were steadily developing our private law, which was but little altered by statute through the whole of that century. During the later Republic and the earlier Empire direct legislation was (speaking generally) resorted to either to abolish some deeply rooted rule or else to establish some new departure, which a magistrate hesitated to undertake on his own responsibility.

VIII. DIRECT LEGISLATION AT ROME.

C. _The Emperor._

The third and last form of direct Roman legislation is that of imperial ordinance. In one aspect it is the most important form, because nearly all the law of statutory origin which has come down to us was enacted by the Emperors, the number of _leges_ and _Senatus consulta_ being slight in comparison. The Emperors, moreover, spoke the last word. It was their legislation which gave to the Roman law the shape in which it descended to the modern world both in the East and in the West.

The Emperor’s legislative authority grew up slowly and almost imperceptibly out of the rights which he enjoyed as holder of several great magistracies, or invested with the powers which belonged to them. Although, in later times, the imperial function of legislation was ascribed to a formal transfer made to him by the people of their own authority[129], it is important to remember that its true parent is to be sought, not in _leges_, nor even in _Senatus consulta_, not in any representation by him, as the heir of the Assembly, of the ancient right of popular sovereignty, but rather in the Edicts of the magistrates, whether their formal enunciations on entering office of the rules by which they proposed to act, or their less public instructions to their subordinate officials.

Footnote 129:

Cf. Just. _Inst._ i. 2. 6: cf. _Dig._ i. 4. 1.

Even the action of the jurists, and the custom of issuing answers on points of law (_responsa_), contributed something to the conception of the Emperor as a source of law, for he was, as a magistrate, an authoritative exponent of the contents of the customary law, and of the interpretation of the statute law; and if an answer given under his commission by an authorized jurist was binding on a _iudex_, how much more weight was due to a declaration proceeding from himself, the fountain-head of authority? That the imperial ordinances have not preserved the outward forms and character of the republican statutes is a consequence of these facts and of the conception I have described. They are not expressed in the same strict and highly technical language as the old statutes were. As regards some of them, and especially some of those which belong to the first two centuries of the Empire, it is hard to say whether they were originally intended to have a general application, for they may have been mere instructions or declarations of opinion, given for the special occasion and purpose only. In fact the Emperors found it necessary to protest against the tendency to attach legal weight to all their words. Trajan, for instance, who seems to have left the character of being more indulgent than most of his predecessors or successors—witness the story of the widow through whom and the prayers of Pope Gregory he obtained salvation[130]—declares that when he makes an answer to a particular request he by no means desires to be taken as establishing a precedent. He felt, no doubt, that in many cases the precedent would be of questionable value, according to the proverb that hard cases make bad law. However, the tendency was too strong to be resisted. All declarations emanating from the supreme authority in the State were taken to be binding on its subjects: and we may imagine how often a wily advocate, or an adulatory judge, would, with loud professions of loyalty, insist on regarding as law what the Emperor had intended to be merely a good-natured compliance with the petition of some unlucky or importunate suppliant.

Footnote 130:

Dante, _Purgat._ canto x.

It is not necessary for our immediate purpose to describe the various forms which the legislation of the Emperors took. They are classed as Rescripts, answers to questions or petitions, Edicts or general proclamations, Mandates or instructions to officials, Decrees (_decreta_), decisions of the Emperor as being at first practically, and at last legally also, a Supreme Court of Appeal[131]. In later times the general name of Constitutions (_constitutio est quod imperator constituit_), was given to them; and in what has to be said further, minor differences between the above mentioned forms may be ignored, and the various kinds of constitutions may be treated together as being all of them enunciations by the sovereign power of those general rules of law which it desired to have observed by its subjects—as being in fact on the same footing as an imperial Ukase in Russia, or an Act of Parliament in England.

Footnote 131:

Sometimes the speeches delivered to the Senate are included, but in these cases the law seems (as already observed) to have been deemed rather senatorial than imperial.

Such legislation by an irresponsible autocrat as that with which the Roman State ended, stands at the opposite pole from that legislation by a primary assembly with which the Roman State began. The latter organ was a stiff, heavy, cumbrous machine, which it was hard to set in motion, and which could work only under certain prescribed forms. The former was not only immensely powerful, but so readily applicable, playing so swiftly and so smoothly, that it was likely to be used too often and to act too fast. The Roman Emperor occupied, it must be remembered, a position different from that of any absolute sovereign in modern times. The Czars in Russia now, the Prussian and French kings in the last century, are, or were, the heads of their respective nations, and therefore not only to some extent likely to participate in national ideas and sentiments, but also largely amenable to national public opinion. However complete their legal sovereignty and practical control, the misuse of their legislative powers could not escape popular censure. A national king is naturally restrained by the fear of displeasing his fellow countrymen. But the monarch of the Roman world, a world where the old Roman nationality had, before it expired, so far crushed the other subject nationalities that none of them could offer any resistance to the levelling pressure of the imperial authority, found himself unguided and uncontrolled by any influence, except the dread of a palace conspiracy or a military rising. Public opinion possessed then no voice, such as it afterwards found in the church, or finds now in the press. The various peoples who, from the second or third century A.D. onwards, called themselves Romans, had not been sufficiently fused together to have a common public opinion. It was not till the sixth or seventh or eighth century that the greatly narrowed Eastern Empire began to have a social and moral coherence, and developed into what might be called a National power.

This unique position of the Roman Emperor made legislation a great deal easier for him than for any modern monarch, easier than for the ruler of China, because there was no vast body of ancient customs he might fear to break through, easier than for a Turkish Sultan, because there was no quasi-ecclesiastical authority like the Sheik-ul-Islam or the whole body of Muslim doctors he might fear to offend. And the fact already noted that the powers of the popular Assembly had not been formally vested in him, worked in the same direction. Had there been any legal transference of legislative functions, some of the old forms and methods would have passed over with the transfer. There would have been at any rate a pretty sharp line drawn between the officially promulgated ordinances of the Emperor and the merely occasional and informal expressions of his will. But (as has already been noted) the Emperor did not legislate as the assignee of the popular power of legislation. His function of making laws sprang from his authority as a magistrate, and the undefined character of that authority remained with him, and helped to make his exercise of it infinitely various in shape and expression. Accordingly in later days no line was formally and technically drawn between the more and the less solemn declarations of his sovereign will. He was not bound by the laws. He made law as a part of his daily administrative and juridical action. He legislated, one might almost say, as he talked and wrote. He exhaled law. Whenever an idea occurred to him, or to the minister authorized to speak in his name, he had only to sign, in the purple ink reserved (in those later days) for the monarch, a few lines, and therewith a law sprang at once into being.

This was the theory, and this was also to some extent the practice. Still the exigencies of a position which threw on one man a prodigious burden of toil and responsibility, compelled the Emperors to make regular provision for the discharge of their legislative and judicial work. A Council soon grew up, consisting at first chiefly of Senators, afterwards largely of jurists, whose members acted as assessors to the Emperor when he heard civil or criminal cases, and who also advised him on projects of legal change. At first it was a fluctuating body, composed of persons whom the monarch summoned for each particular occasion, though doubtless some of the ablest and most trusted men would be invariably summoned. But under Trajan and Hadrian it became a regularly organized chamber of formally nominated and salaried officials, in which, besides jurists, there sat some Senators and Knights, and a few of the chief court officers, together with the Praetorian Prefect, who seems after the second century to have held the leading place. As it was numerous, we may suppose that particular members were summoned for particular kinds of business, or that it often worked by committees. In all these points it furnishes an interesting parallel to the English Privy Council. And it was itself, under the name of Consistorium, which it took in the time of Diocletian, the model on which the papal Consistory was ultimately built up by the bishop of the imperial city. Some of its chief members were the immediate ministers of the sovereign, journeying with him, as Papinian accompanied Septimius Severus to York, or directing legal and judicial business from Rome, while he made progresses through the provinces, or warred against the barbarians on the frontier. Among the duties of the Emperor’s legal councillors, that of prompting, directing, and shaping legislation must have been an important one. Probably there was a regular staff for the purpose, a sort of Ministry of Justice, directed by the Praetorian Prefect, and in later times by the Quaestor, with a body of draftsmen and clerks. How much the Emperor himself contributed, or how far he examined for himself what was submitted to him, would depend on his own special knowledge and industry. Rude soldiers like Maximin, debauchees like Commodus, would leave everything to their advisers, and if these had been wisely selected by a preceding Emperor, things might go on almost as well as under a capable administrator like Hadrian, or a conscientious one like Severus Alexander[132]. The number of constitutions enacted was enormous, judging not only from what the Empire must have needed, but from the laws, or fragments of laws, which remain to us in the Codes of Theodosius II and Justinian; and as the legislative action, both of the Senate and of the Magistrates (other than the Emperor), had almost wholly ceased after Hadrian’s time, while the local rules and customs of the provinces tended to be more and more superseded by the law of the ruling city, legislation may, at least for a considerable period, have rather increased than diminished in volume.

Footnote 132:

Of whom we are told that he never sanctioned any Constitution without the advice of at least twenty jurisconsults. After Hadrian the _Consiliarius Augusti_ had a position of recognized dignity.

The good and bad points of a system which commits the making of laws to an absolute sovereign are easily summed up. Autocratic power is the most swift and efficient of all instruments for effecting reforms. Used with skill, tact, and moderation, it can confer incalculable benefits on a country. To be able at your pleasure to abolish obsolete institutions, to curtail the offensive privileges of a class, to override vested interests, to remove needless anomalies and antiquated forms of procedure, to simplify the law by condensing a confused mass of statutory provisions, or expressing the result of a long series of cases in a single enactment, and to do all this without the trouble of justifying your enlightened purposes to the dull and the ignorant, or of mitigating hostility by concessions and compromises which ruin the symmetry and reduce the effectiveness of your scheme—this is indeed a delightful prospect for the law reformer. The power of trying experiments is seductive to the philanthropist or the philosopher, for there are many problems which ought to be attacked by experimental methods, since nothing but an experiment can test the merit of a promising plan. Yet experiments are just the things which in popularly governed countries it is rarely possible to try, because the bulk of mankind, being unscientific, will seldom permit a thing to be tried till it has been proved to be not merely worth trying but absolutely necessary, while when it has been tried, and has not worked well, it is almost as hard to persuade them either to vary it or to drop it altogether. To tell the multitude that the scheme you propose may fail, though you think it worth trying, is to discredit it in their eyes. To admit that it has failed is to destroy your own credit for the future.

So again, if it is a question of improving the form and expression of the law, an absolute monarch evidently enjoys the finest possible opportunities of creating a perfect system. He can command all the highest legal ability of the State. He can bestow upon his commission of legislators or codifiers the widest discretion. When they have finished their work he can subject it to any criticism he pleases before enacting it as law. When he enacts it, he can abolish all pre-existing law by a stroke of the pen. Even afterwards he can readily correct any faults that may have been discovered, can suppress old editions, can provide means by which the law shall be regularly from time to time amended, so that all new statutes and all interpreting decisions shall be incorporated with it or appended as supplements to it. Few are the philanthropic enthusiasts, few are the theoretical codifiers, who have not sighed for an Autocrat to carry out their large designs.

According to that law of compensation which obtains in all human affairs these advantages are beset by corresponding dangers. Ease begets confidence, confidence degenerates into laxity and recklessness. As the laws of metre and rhyme help the versifier by forcing him to study and polish his diction, so he who is not now and then stopped by obstacles is apt to advance too quickly, and may not consider whither he is going. If an error can be readily recalled it is lightly ventured, and the hasty legislator discovers too late that it is not the same thing to recall an error as never to have committed it. In the field of legislation the danger of doing too much is a serious danger, not only because the chances of error are manifold[133], but because the law ought to undergo as few bold and sudden changes as possible. The natural process whereby the new circumstances, new conditions, new commercial and social relations that are always springing up become recognized in custom and dealt with by juridical science before direct legislation impresses a definite form upon the rules that are to fix them—this process is the best, and indeed the only safe way by which a nation can create a refined and harmonious legal system. Even the certainty of the law is apt to suffer if legislation becomes too easy, for the impatient autocrat may well be tempted, when some defect has been discovered, to change it forthwith, and then to find that the change has been too sweeping, so that steps must be taken backward, with the result of rendering doubtful or invalid transactions which have occurred in the meantime. If these dangers are to be avoided, it must be by entrusting legislation to the hands of advisers not only learned and skilful but also of a conservative spirit. In war and politics boldness is quite as needful as caution, but in reforming the law of a country the risk of going too slow is less serious than that of going too fast.

Footnote 133:

Τὸ μὲν γὰρ ἁμαρτάνειν πολλαχῶς ἐστι, τὸ δὲ κατορθοῦν μοναχῶς, says Aristotle: ‘You can hit only in one way, but you may miss in many.’

These observations are illustrated by the course of events at Rome. At first, while the magistrates were still hard at work in building up the law by their Edicts, and the jurists no less active in developing it on conservative lines by their _responsa_ and treatises, the Emperors used their legislative power sparingly because they were guided by accomplished lawyers. Comparatively few constitutions are cited from the days of Trajan and Hadrian, and even from those of the Antonines. These constitutions are short, clear, precise, introducing only those new rules or deciding only those questions which it was necessary to establish or deal with. After the time of Diocletian[134], when the powers of the old magistrates had withered away and the fountain of juristic genius had dried up, direct legislation became far more copious, and began to range more widely over all sorts of subjects. Serviceable it certainly was in the way of abolition, for there was much to be abolished. But it tended to become always more and more rash and heedless in its dealings with the pre-existing law. Apart from the harshness or bad economics which frequently marred its provisions, it was often injudicious in matters of pure legal science. If in some cases it cleared the ground of antiquated rules and forms, in others it merely shore away abruptly and inartistically the more conspicuously inconvenient applications of an old doctrine, while leaving the doctrine itself to create future difficulty. It acted too much with reference to the particular evil dealt with, too little with a view to the law as a whole. It was, in a word, too unmindful of that _elegantia_, that inner harmony and consistency with principle which had been always before the eyes of the elder jurists. Legal style and diction experienced a similar declension. From and after the days of Diocletian, the language of imperial ordinances grows more and more rhetorical, pompous, and turgid. The imperial utterances had never emulated the scrupulous exactitude and technicality of the republican _leges_. But they were, during the first two centuries of the Empire, simple and concise. Afterwards, while becoming more prolix they became also less exact. These faults are, to be sure, not mainly due to the more palpably despotic position of the Emperor, but rather to the steady deterioration of juridical and literary capacity which mark these later centuries. That the decline was less evident in the department of law than in most other branches of intellectual life may be ascribed, partly to the nature of the subject, which does not invite florid treatment, partly to the absence of Greek rhetorical models, Greek being eminently the language of rhetoric, partly, perhaps, also to the influence of the two great law schools of Beyrut and Constantinople, and to the fact that the writings by which the lawyer’s mind was formed were still the admirable works of the luminaries of the early Empire. Still the fall is a great one. How much more repellent is the extreme of over-ripe laxity than the extreme of primitive stiffness may be felt by any one who will compare the weak and wordy ‘New Constitutions’ (_Novels_ ) of Justinian with the crabbed strength of the Twelve Tables, abrogated by Justinian himself after a thousand years of reverence. There is, in fact, only one fault which the later imperial legislation may appear to have avoided when we compare it with that of modern England or America. It goes much less into detail. It does not seek to exhaust possible cases, and provide for every one of them. This merit, however, is due, not so much to skill on the part of the Roman draftsmen, as to the range of power allowed to Roman officials and judges, and to the faint recognition of the rights of the individual subject. The tedious minuteness of modern English and American statutes, if it grieves the scientific lawyer, is after all a laudable recognition and expression of that respect for personal liberty and jealousy of the action of the executive which have distinguished the English race on both sides of the Atlantic. Thus that which might appear to be an excellence of the later imperial legislation in point of form is seen to be an evil in point of substance, for it is due, not to any superiority of legal skill, but to the existence of an autocracy which did not care to limit the discretion of its subordinate officers.

Footnote 134:

Many of Diocletian’s rescripts are well expressed and show a mastery of the old legal principles.

IX. DIRECT LEGISLATION IN ENGLAND: PARLIAMENT.

It remains for us to consider the organ of direct legislation in England, and the work which that organ turns out. Here again I must turn away from the large field of historical inquiry. The history of English statutes, their development out of petitions addressed to the sovereign in his Great Council, the mode in which they were drafted, debated, and passed, the rules of interpretation which have obtained regarding them, their influence at different epochs upon the growth of the Common Law, the development and value of the functions of non-official members of Parliament in preparing them and getting them passed, the decay of those functions which the last few years have seen—all these would supply interesting and instructive matter, not merely for an essay but for a treatise. But seeing how long we have had to wait for a philosophical history of the law of England in general, one need not be surprised that this particular department still waits for its historian[135].

Footnote 135:

The admirable _History of English Law_ of Professors Pollock and Maitland stops soon after the point at which parliamentary legislation begins. Since the passage in the text was written, the book of Sir C. P. Ilbert, entitled _Legislative Methods and Forms_, has been published. It is full of valuable information and acute remarks upon modern English legislation, and brings together a mass of historical facts never previously collected.

In England there has been, through the long course of our history, only one organ of Direct Legislation, viz. the Great Council of the nation. It began as a Primary Assembly of all freemen. It passed, between the time of Athelstan and that of Henry III, through a phase in which it had, owing to the growth of the nation and to the practical limitation of its membership, almost ceased to be Primary in fact, though its theoretical character, as embracing the whole people, had not been abrogated. Since the time of Edward I it has consisted of two branches, one of which is Primary, the other Representative; and this present phase is evidently drawing to its end.

Thus the history of Direct Legislation in England stands contrasted with the history of such legislation in Rome in two points: (1) that we in England have always had an organ which in intendment of law was the same from beginning to end, and admittedly supreme; and (2) that we have never had more than one organ at the same time, whereas at Rome the theoretically complete and unrestricted legislative power of the popular Assembly coexisted, for a time, with the legislative power of the Senate, and the theoretically complete and unrestricted legislative power of the Senate coexisted for a certain period with the legislative power (stronger, but at first carefully disguised) of the Emperor. It may seem absurd to speak of two organs of direct legislation as each complete and supreme: yet such would seem to have been the theory of the Roman law. We in England came near having a similar state of things in the days when the Crown claimed, and was sometimes permitted to exert, a power of legislating apart from Parliament and not in virtue of any permission by Parliament. But this power was never formally recognized by the law.

The Parliament of the United Kingdom and that eldest and strongest of its numerous progeny, the Congress of the United States, seem at first sight well composed and admirably equipped for securing legislation which shall be excellent in point both of Substance and of Form. As to excellence of Substance, these assemblies ought to be able to make such laws as the people wish and need, for they are popular in character, giving full expression to the wishes of all classes, and enabling any person or section aggrieved by existing defects in the law to state his complaints and suggest a remedy for them. The British Parliament, moreover, consists of two Houses, one of which, while deficient in the strength that comes from popular election, is by its composition capable of looking at questions from a point of view unlike that of the Lower House. It contains many men of great ability and knowledge of affairs, so that it could well discharge (if so disposed) the functions of criticism and revision. So the American Congress has also the advantage of being composed of two branches, either of which can criticize and amend the Bills passed by the other.

As regards excellence of Form, which is that with which we are here specially concerned, several notable merits may be claimed for the British Parliament. The House of Lords, as has been just observed, contains among the fifty or sixty persons (out of nearly six hundred members) who habitually attend its sittings not a few possessing intellectual power and practical experience, with (usually) some seven or eight distinguished lawyers, the flower of the legal profession. Being a representative body, the House of Commons contains persons who are presumably above the average in knowledge of the world and its affairs, as well as in intellectual capacity. Among these there are to be found many men (though a smaller proportion than is found in the American Congress or in some colonial legislatures) who possess a technical acquaintance with the laws of the country, and ought to be specially well fitted to amend them, while at the same time any such tendency as professional men might have to indulge in mere technicalities is likely to be corrected by the presence of a majority of laymen. They deliberate in full publicity, and thereby can obtain from all quarters suggestions that may direct or help them. They are responsible to those who have sent them up, and who can closely watch their conduct. Ample opportunities are provided for the discussion of every measure, and for curing any defect which may lurk in any Bill brought forward either by the Ministers of the Crown, liable through their position to a fire of hostile criticism, or by a private member. Every Bill has to pass through seven stages in the House of Commons[136], and six in the House of Lords, and at each of these stages it may be debated at indefinite length[137]. That must be, one would think, either a very trivial or a strangely hidden blemish which escapes the notice of keen, experienced, and often unfriendly critics on twelve successive occasions[138]. Could any machinery be better adapted to secure that the laws passed shall be expressed in the most clear and precise terms, that each shall be well arranged and self-consistent, that every new statute shall be properly fitted into those that have gone before, and shall, in effecting any change, repeal expressly the parts of previous statutes which it affects, so as to provide against possible uncertainty or discrepancy?

Footnote 136:

Now (1900) reduced to six by the discontinuance of the habit of putting the question that Mr. Speaker do leave the chair when the House of Commons goes into Committee.

Footnote 137:

Now, however, subject to the power of imposing the closure of debate, a power the growing frequency of whose exercise has greatly altered the character of the House.

Footnote 138:

Now reduced to eleven. The number of stages for a Bill which passes through both Houses must be calculated by subtracting one from the number reached by adding the stages in each House, because a Bill coming from either House to the other obtains its first reading as a matter of course, without debate.

Why is it then that we hear so many complaints about the condition of the laws of England as to the number of points which remain unsettled, as to the confusion in which some great departments of law lie, as to the undue length of our statutes, their obscurity, their inconsistencies, their omissions? I do not inquire to what extent these complaints are well founded. It is enough to note that they proceed not merely from scientific jurists, who might be supposed to be enamoured of an impossible ideal, but from such practical men as compose our commercial classes, such technically competent as well as practical men as the judges of the land.

Somewhat similar complaints are made in the United States. The methods of legislation used there are generally similar to those of Britain, both in the Federal Congress and in the forty-five State Legislatures, and every one of these bodies consists of two Houses, each jealous of the other. The chief difference is that the Americans consolidate their statutes at certain intervals, so that the statute law, both Federal and State, is brought within a smaller compass than that of the United Kingdom. Subject to this and to some minor dissimilarities, the remarks which follow on the causes why British legislation is less perfect than might be expected from the elaborate machinery provided for producing it apply to the United States also[139].

Footnote 139:

As to the actual methods and difficulties of Parliamentary legislation, see the penetrating and careful analysis contained in Sir C. P. Ilbert’s _Legislative Methods and Forms_, chap. x.

The methods of British legislation, and the dangers incident to those methods, are exactly the opposite to those which we have noted in Rome. Both under the Republic, when statutes were passed at the instance of a magistrate with no possibility of amendment by the Assembly, and under the later Empire, when the monarch or his advisers could issue a law with as much ease and as little personal fear of consequences as a counsel can draw a will or the articles of a joint stock company, no provision was made for independent criticism, nor for discussion, nor for the interposition of delays. The excellence of the law depended on the person who prepared and proposed it, and on him alone[140]; and the law could be issued to take effect as soon as the Assembly had given its one vote or the Emperor his one signature. The Senate could indeed debate and might amend the forms of decrees submitted to it, but as it was really a mere instrument in the Emperor’s hand it exercised these powers very sparingly.

Footnote 140:

Although, as observed above, the Emperor might, if he liked, cause a draft Constitution to be debated in his Consistory.

With us in England the opportunities for debate, for resistance, and for amendment are so ample as to prevent many things from being done which ought to be done, and to impress an unscientific cumbrousness, prolixity, and inelegance upon most of the work we turn out. Too many persons are concerned, and few of them have any care or taste for technical excellence. The House of Commons is overloaded with work, some of it work which it had better not attempt, but which it does attempt in deference to the clamorous demands of particular sections of opinion. A reform in the substance of the law excites little interest unless it has either some political (_i.e._ party) importance, or has a considerable pressure of public opinion behind it. A reform in the form and expression of the law, having neither of these forces to back it up, excites no interest at all. Accordingly it is neglected, for a Ministry is disposed to think first of pleasing its own supporters, then of winning popular favour in general, and accordingly gives the time at its disposal to measures deemed likely to secure for it political advantage.

Private (_i.e._ unofficial) members of Parliament might supply what is lacking in the Ministry by bringing forward and passing modest and useful Bills, calculated either to remove minor defects in the substance of the law or to improve its form. But the Ministry now commands so large a part of the available time of the House of Commons, and the opportunities given to members for arresting the progress of other members’ bills are so abundant, that hardly anything can be accomplished by an unofficial member. In the United States, where all members are unofficial, the despotism of the British Ministry, which after all is a responsible despotism, is replaced by the irresponsible despotism of the Committees, which are as much disposed as is a British Ministry to be swayed by sectional pressure or by the prospect of political gain.

The British House of Commons is too large for discussing what may be called the technical or formal part of legislation. Its debates in Committee on points of substance are often excellent. But it cares little for harmony, propriety, and conciseness of language. If an inexperienced enthusiast for legal symmetry observes, in proposing an amendment, that his terms will not affect the substance, though they will improve the form, of the clause, he is impatiently rebuked for occupying the time of the House with what ‘will make no difference.’ On the other hand, changes in substance are constantly made in Committee which have the effect of rendering the form of the measure worse than when it came from the draftsman’s hands. Clauses are put in or struck out, exceptions are added, references to other statutes are inserted, which make the sense of the enactment difficult to follow and its construction uncertain. Sometimes these faults are corrected in that later consideration which is called the Report stage. Sometimes they are not, either because they have escaped notice, or because the Ministry are in a hurry, and do not wish to risk the further raising of questions likely to give trouble. The House of Lords ought to correct all such blemishes. But it seldom does so, either from indolence, or because it does not wish to differ with the House of Commons except where it has some class interest, political or economic, to contend for. In fact, that function of revision which modern theory attributes to the House of Lords is not discharged.

The facilities which Parliamentary procedure affords for delaying the progress of Bills in the House of Commons are so ample, not to say profuse, that the practice has grown up of drafting Bills, not in the form most scientifically appropriate, but in that which makes it easiest for them to be carried through under the fire of debate. To lay down those broad, clear, simple propositions of principle which conduce to the intelligibility and symmetry of the law is to invite opposition, and to make the process of opposing easier for those who desire to resist, but have not the technical knowledge needed for a minute discussion. To bury a principle out of sight under a mass of details; to avoid the declaration of a principle by enacting a number of small provisions, which cover most of the practically important points, yet do not amount to the declaration of a new general rule; to insert a number of exceptions, not in themselves desirable, but calculated to avert threatened hostility; to hide a substantial change under the cloak of a reference to some previous Act which is to be incorporated with the Act proposed to be passed; to deal with some parts of a subject in one year, and postpone some other parts to be dealt with in another measure next year, while leaving yet other parts to the chances of the future, though all ought to have been included in one enactment;—these are expedients which are repellent to the scientific conscience of the draftsman, but which are forced on him by the wishes of the Minister who is in charge of the Bill and who foresees both the objections that will be taken to it and the opportunities for obstructing it which parliamentary procedure affords. Yet the Minister may well plead that, with the limited time at his disposal, these expedients are essential to the passing of his Bill. Any one can see what complication, what obscurity, what uncertainty in the law must needs result from this way of amending it.

Thus it has come about that our English statute law is more bulky and even more unscientific in its form (whatever the excellence of its matter) than was the statute law of the Roman Empire when Theodosius II, and afterwards Justinian, set themselves to call order out of chaos. No Theodosius II, no Justinian, need be looked for in England. Yet much might be done to reduce the existing statutes into a more manageable mass, and something to improve the form in which they come from the hands of the legislature. The former work, previously in the hands of the Statute Law Commission, has since that body came to an end been entrusted to another body called the Statute Law Committee, which is conducting a general revision of the statutes. It has issued a Revised Edition coming down to A. D. 1886, and under its auspices a number of useful Consolidation Acts have been passed, whereby the Statute Law, and in a few instances the Common Law also, relating to particular departments has been brought together and enacted as an orderly whole. The more difficult enterprise of providing better methods for turning out new law in a clear, concise, and scientifically ordered form, is rarely discussed, even by lawyers, and seems to excite no public interest. It raises many difficult questions which this is not the place to treat of, so I will be content with observing that the remedy for the present defects of British statutes which seems least inconsistent with our parliamentary methods, would be to refer each Act, after it had passed both Houses, but before it received the royal assent, to a small committee consisting of skilled draftsmen and of skilled members of both Houses, who should revise the form and language of the Act in such wise as, without in the least affecting its substance, to improve its arrangement and its phraseology, the Act being formally submitted once more to both Houses before the royal assent was given, so as to prevent any suspicion that a change of substance had been made. It is, however, unlikely that Parliament will consent to any proposal of this nature; and even if some such expedient were adopted it would, at least in some cases, fail to remove the faults above described, because they are necessarily incident to legislation by large assemblies on matters which excite popular feeling and involve political controversy.

X. SOME REFLECTIONS SUGGESTED BY THE HISTORY OF LEGISLATION.

The chief reflections which a study of Roman and English modes of law-making seem to impress upon the inquirer’s mind are the three following.

The first is that the law of best scientific quality is that which is produced slowly, gradually, tentatively, by the action of the legal profession. At Rome it was produced by the unofficial jurists under the Republic, by the authorized jurists under the earlier Empire, by the magistrates who framed and went on constantly revising the Edicts from the time of the Punic Wars to that of Hadrian. In England it has been produced by the writers of text-books, but still more by the judges from the time of Glanvil and Bracton down to our own day. Our private law is as much a growth of time as is our Constitution, or as are our ideas on such subjects as economics or ethics. What has been true of the past will be true of the future; and though we can foresee no changes in the future comparable to those which have built up the existing fabric of our law out of the customs of the thirteenth century, we must expect the process of change to continue as long as life itself, and must beware lest by any attempt at finality we should check a development which is the necessary concomitant of health and energy.

The second is that the special point wherein the Roman system had an advantage over our own, and indeed over that of all modern countries, was the existence of an organ of government specially charged with the duty of watching, guiding, and from time to time summing up in a concise form, the results of the natural development of the law. The Praetor with his Edict is the central figure in Roman legal history, and a unique figure in the history of human progress. The Roman statutes of the Republic were not, except perhaps in their brevity, superior to our statutes down to the time of George III. The imperial constitutions, especially the later ones, are inferior in substance and perhaps not better in form than our later English statutes. The treatises of the Roman lawyers, if more convenient in point of form than our volumes of Reports, contained discussions not more acute and subtle, nor so great a wealth of matter; and they were not more free from discrepancies. But neither England nor the United States has ever had or can have any one who could conduct legal reforms in such a way as did the Praetor.

A third reflection is that the various departments of legislation are not equally well suited to be developed by one and the same organ of legislation. Administrative law can hardly be created except by the direct action of the sovereign power in the State, whether the monarch or the Legislative Assembly acting at the instance of the Executive. In every country that kind of law has been so created, and its growth belongs to a comparatively late stage in the progress of a State. As the need for a more elaborate civil and military administration increases, so does the organ appropriate for legislating on such matters become evolved. A very large part of recent legislation in England[141] and in the United States belongs to this category, and similarly a large part of the Codes of Theodosius II and of Justinian are filled by such matters.

Footnote 141:

According to Sir C. P. Ilbert (_op. cit._) nine-tenths.

A system of procedure, civil and criminal, with the judicial machinery required to work it, may be created either by the direct legislative action of the supreme power, or by custom and the action of the Courts. Both at Rome and in England it was through usage and by the Courts themselves that the earlier system was slowly moulded; both at Rome and in England it was direct legislation that established the later system. Functions discharged by both the Praetor and the Chancellor are the offspring of custom and not of statute. But the judicial system of the Roman Empire, as well as the mode of procedure by _formulae_ (established by the _Lex Aebutia_ probably about B.C. 200) and the criminal _quaestiones perpetuae_ of the later Republic, and similarly all the changes made in English procedure and the English Courts during the last two centuries, culminating in the sweeping reconstruction effected by the Judicature Act of 1873, were the work of direct legislation.

Criminal law has everywhere grown out of Custom, and has in all civilized States been largely dealt with by direct legislation. In most European countries it has been codified by statute, to the general satisfaction of the people; and the conspicuous success of the Indian Penal Code shows that English criminal law is susceptible of being so treated. Thus we may say that all the branches of law which I have enumerated are fit matters for direct legislation by the sovereign power, and less fit to be left to jurists and magistrates.

As to private law in the narrower sense of the term, the law of property, of inheritance, of contracts, of torts, and so forth, it has already been remarked that it was at Rome and is in England the offspring of Custom, that is to say, of the usages of the community, and of the reflections and discussions of lawyers, bringing these usages into a precise shape and developing them in points of detail, together with the decisions of judges stamping them as recognized in those points of detail as well as in their general principles. As time went on, direct legislation was more and more resorted to both at Rome and in England either to define or to change the law which jurists, magistrates, and judges had wrought out of materials provided by custom. It was often necessary, because there were faults in the law which the Courts had not the power, even if they had the wish, to alter. Yet direct legislation has seldom been successful except either in expunging such faults, or in systematizing what was already well settled. Compare, for instance, the modern law of negotiable instruments, built up by the custom of merchants and the Courts, and not reduced to the form of a statute till nearly every question had been thoroughly worked out by lawyers in the course of judicial practice, with the law of Joint Stock Companies, which is mainly the product of direct legislation. The former is as definite and practically convenient as the latter is confused and unsatisfactory. It is quite true that the latter topic is one which could not well have been left to usage and the Courts. Yet such a comparison indicates the difficulties which confront a legislature when it attempts to create _de novo_, that is to say, on general principles and without much help from custom. The law of Joint Stock Companies with limited liability is one of those departments which needs to be treated by the method of constant experiment, varying from time to time the remedies needed against the new forms in which fraud and trickery appear, and meeting by fresh provisions the devices by which crafty men evade the rules intended to protect the unwary[142].

Footnote 142:

It must, however, be added that the difficulties which surround this most unsatisfactory branch of our law are partly due to the recurring collision of two different theories, that of _Caveat emptor_ (let the buyer beware) and that which would exact _uberrima fides_ (the amplest good faith) from a company promoter or director.

A magistrate like the Roman Praetor might perhaps deal with such a branch of law more effectively than can either an English judge or the English Parliament—more effectively than a judge, because his powers would be wider; more effectively than Parliament, because he could more promptly and easily drop a provision which had proved inefficient, and try the working of a new one without purporting to make it a part of the permanent law of the land.

It follows from these considerations that some branches of the law are much more fit than others to be embodied in a code, and that the discussions, more frequent and more animated thirty years ago than they are to-day, as to the merits and drawbacks of codification, ought to have distinguished more carefully than they did between the adaptability to diverse departments of law of a system of rules enacted in a form intended to be final. We may hope to have some light upon this subject from the working of the new German Code. In any case, it may be suggested that a society in which the ideas and habits that relate to any one side of its life are changing—as for instance those relating to the civil status of women have changed in England during the last fifty years, or in which the methods of business are changing, as those relating to joint stock enterprise have changed both in England and America—does ill to stereotype in a form difficult to amend the particular legal rules which govern it at any given moment, however adequately that form may for the moment embody the substance of those rules.

XV

THE HISTORY OF LEGAL DEVELOPMENT AT ROME AND IN ENGLAND

In the last preceding Essay the organs of legislation, and the methods whereby they were worked at Rome and in England respectively, were discussed and compared. A consideration of the course which legal change took, in its various phases of development, reform or decay, may be completed by inquiring into the general causes and forces which determined and guided the process of change. To justify the selection of Rome and England for comparison it is necessary to recur to two points only in which the history of institutions in these two States presents a remarkable analogy. Both have been singularly independent of outside influences in the development of their political character and their legal institutions. The only influence that seriously told on Rome was that of the Greeks: yet how thoroughly Roman all the institutions that ever had been Roman remained down till the second century of the Empire, after Hellenic influence had for more than two hundred years been playing freely and fully upon literature and thought! So English institutions have been far less affected by external influences than have been those of any other part of European Christendom. In France, Italy, Germany, and Spain, the traces of Roman dominion were never obliterated, and Roman law too, both through its traditions and through the writings which embody it, has always been a more potent factor than it ever was here. These countries have, moreover, borrowed more from each other than we have done from any one of them, except, perhaps, in the days when Normandy gave a Continental tinge to the immature feudality of England. And, secondly, both Rome and England have extended their institutions over vast territories lying beyond their own limits. Each has been a conquering and ruling power, and the process by which each grew into a World State from being, the one a City and the other a group of small but widely scattered rural tribes, offers striking points of resemblance as well as of contrast. I might add that there are similarities in the character of the two nations, similarities to which their success in conquering and ruling is due. But, for the moment, it is rather to law and institutions than to character that I seek to direct the reader’s attention.

Since the law of every country is the outcome and result of the economic and social conditions of that country as well as the expression of its intellectual capacity for dealing with these conditions, the causes which modify the law are usually to be sought in changes which have passed upon economic and social phenomena. When new relations between men arise, or when the old relations begin to pass into new forms, law is called in to adjust them. The part played by speculative theorists or by scientific reformers who wish to see the law made more clear and rational is a relatively small factor in legal change, and one which operates only at rare moments. The process of development, if not wholly unconscious, is yet spontaneous and irregular. Alterations are made, not upon any general plan or scheme, but as and when the need for them becomes plain, or when it has at least become the interest of some ruling person or class to make them.

The relation of the general history, political, economic, and social, to changes in laws and institutions is best seen at certain definite epochs. It is indeed true that in nations which have reached a certain stage of civilization the conditions of life, and the relations of men and classes to one another, never remain quite the same from generation to generation. Every mechanical discovery, every foreign war or domestic insurrection, every accession or loss of territory, every religious or intellectual movement leaves things somewhat different from what it found them. Nevertheless, though the process of change is, except in savage or barbarous peoples, practically constant and uninterrupted, it becomes at certain particular moments much more swift and palpable, rushing, so to speak, through rapids and over cataracts instead of gliding on in a smooth and equable flow. These are the moments when a nation, or its ruler, perceives that the economic or social transformations which have been taking place require to be recognized and dealt with by corresponding changes in law and institutions, or when some political disturbance, or shifting of power from one class or group to another, supplies the occasion for giving effect to views or sentiments hitherto repressed. Accordingly it is profitable to give special attention to these transitional epochs, because it is in them that the relation between causes and consequences can be studied most easily and on the largest scale. Let us see what are the epochs in Roman and in English history which may be selected as those marked by conspicuous legal or institutional changes before we examine the relations of these changes to the forces which brought them about.

I. FIVE CHIEF EPOCHS OF LEGAL CHANGE AT ROME.

In the thousand years of Roman history that lie between the first authentic records of the constitution and laws of the city, say 451 B.C., when the Decemviral Commission, which produced the laws of the Twelve Tables, was appointed, and 565 A.D., when Justinian died, having completed his work of codification and new legislation[143], we may single out five such epochs.

Footnote 143:

It is convenient to stop with Justinian, because he gave the law the shape in which it has influenced modern Europe, and because our historical data became much more scanty after his time. But of course the history of the law goes on to A.D. 1204, and in a sense even to A.D. 1453, in an unbroken stream, the codes issued by the later Emperors, and especially the _Basilica_ of Leo the Philosopher, being based upon Justinian’s redaction.

1. The epoch of the Decemviral Legislation, when many of the old customs of the nation, which had been for the most part preserved by oral tradition, were written down, being no doubt modified in the process.

2. The days of the First and Second Punic Wars, when the growth of population and trade, the increase of the number of foreigners resident in Rome, and the conquest by Rome of territories outside Italy, began to induce the development of the Praetorship as an office for expanding and slowly remodelling the law.

3. The end of the Republic and early days of the Empire, when there was a brilliant development of juridical literature, when the opinions of selected jurists received legal authority from the Emperor’s commission, when the Senate was substituted for the popular assemblies as the organ of legislation, and when the administration of the provinces was resettled on a better basis—all these changes inducing a more rapid progress of legal reform.

4. The reigns of Diocletian and Constantine, when imperial legislation took a fresh and vigorous start, and when the triumph of Christianity brought a new, a powerful, and a widely pervasive force into the field of politics and legislation.

5. The reign of Justinian, when the plan of codification whose outlines Julius Caesar had conceived, and which Theodosius II had done something to carry out, was at last completed by the inclusion of the whole law of Rome in two books containing the pith of the then existing law, and when many sweeping reforms were effected by new legislation.

It is less easy to fix upon epochs of conspicuous change in English legal institutions and law, because English development has been on the whole more gradual, and because the territorial limits of the area affected by change have not expanded to anything like the same extent as did the territories that obeyed Rome. Rome was a City which grew to be the civilized world: the _Urbs_ became _Orbis Terrarum_. The English were, and remain, a people inhabiting the southern part of an island, and beyond its limits they have expanded (except as respects Ireland), not by taking in new territories as parts of their State, but by planting semi-dependent self-governing States which reproduce England[144]. However, one may, for the sake of a comparison with Rome, take the five following epochs as those at which the process of change became the most swift and the most effective for destruction and creation.

Footnote 144:

I do not include India or the Crown Colonies, because the population of these is not English.

II. FIVE EPOCHS OF LEGAL CHANGE IN ENGLAND.

1. The time of Henry II, when the King’s Courts became organized, and began to evolve a Common Law for the whole realm out of the mass of local customs.

2. The times of Edward I and Edward III, when the solidification of the kingdom saw the creation of a partly representative legislature, the enactment of important statutes, and the establishment of a vigorous organ for the development and amendment of the law in the Chancellorship.

3. The time of Henry VIII and Edward VI, when the progress of society and an ecclesiastical revolution caused the passing of several sweeping legal reforms, separated the courts and the law of England from a system of jurisprudence which had influenced it in common with the rest of Western Christendom, and permanently reduced the power of the clergy and of clerical ideas.

4. The epoch of the Great Civil War and Revolution, when legislative authority, hitherto shared or disputed by the Crown and the Houses of Parliament, passed definitively to the latter, and particularly to the popular branch of Parliament, and when (as a consequence) the relation of the Monarch to the landholding aristocracy, and that of the State to its subjects in religious matters, underwent profound alterations.

5. The reigns of William IV and Victoria, when the rapid growth of manufacturing industry, of trade, and of population, coupled with the influence as well of new ideas in the sphere of government as of advances made in economic and social science, has shaken men loose from many old traditions or prejudices, and has, while rendering much of the old law inapplicable, made a great deal of new legislation indispensable.

Now let us consider what are the forces, influences, or conditions which at all times and everywhere become the sources and determining causes of changes in laws and institutions, these latter being that framework which society constructs to meet its needs, whether administrative or economic or social.

Five such determining causes may be singled out as of special importance. They are these.

1. Political changes, whether they consist in a shifting of power as between the classes controlling the government of a country, or affect the structure of the governmental machinery itself, as for instance by the substitution of a monarch for an assembly or of an assembly for a monarch.

2. The increase of territory, whether as added to and incorporated in the pre-existing home of a nation or as constituting a subject dominion.

3. Changes in religion, whether they modify the working of the constitution of the country or involve the abolition of old laws and the enactment of new ones.

4. Economic changes, such as the increase of industrial production or the creation of better modes of communication, with the result of facilitating the exchange of commodities.

5. The progress of philosophic or scientific thought, whether as enouncing new principles which ultimately take shape in law, or as prompting efforts to make the law more logical, harmonious and compendious.

The influence of other nations might be added, as a sixth force, but as this usually acts through speculative thought, less frequently by directly creating institutions and laws, it may be deemed a form of No. 5.

The two last of these five sources of change, viz. commerce and speculative or scientific thought, are constantly, and therefore gradually at work, while the other three usually, though not invariably, operate suddenly and at definite moments. All have told powerfully both on Rome and on England. But as the relative importance of each varies from one country to another, so we shall discover that some have counted for more in the case of Rome, some in that of England. The differences throw an instructive light on the annals of the two nations.

III. OUTLINE OF LEGAL CHANGES AT ROME.

The legal history of Rome begins with the law of the Twelve Tables. This remarkable code, which, it need hardly be said, was neither a code in the modern sense, nor in the main new law, but rather a concise and precise statement of the most important among the ancient customs of the people, dominated the whole of the republican period, and impressed a peculiar character upon the growth of Roman law from the beginning till the end of the thousand years we are regarding. It gave a sort of unity and centrality to that growth which we miss in many other countries, England included, for all Roman statutes bearing on private law were passed with reference to the Twelve Tables, nearly all commentaries grouped themselves round it, and when a new body of law that was neither statute nor commentary began to spring up, that new law was built up upon lines determined by the lines of the Twelve Tables, since the object was to supply what they lacked or to modify their enactments where these were too harsh or too narrow. Its language became a model for the form which later statutes received. It kept before the minds of jurists and reformers that ideal of a systematic and symmetrical structure which ultimately took shape in the work of Theodosius II and Justinian. Now the law of the Twelve Tables was primarily due to political discontent. The plebeians felt the hardship of being ruled by customs a knowledge of which was confined to the patrician caste, and of being thereby left at the mercy of the magistrate, himself a patrician, who could give his decision or exert his executive power at his absolute discretion, because when he declared himself to have the authority of the law, no one, outside the privileged caste he belonged to, could convict him of error. Accordingly the plebs demanded the creation of a commission to draft laws defining the powers of the Consuls, and this demand prevailed, after a long struggle, in the creation of the Decemvirs, who were appointed to draft a body of general law for the nation. This draft was enacted as a Statute, and became thenceforth, in the words of Livy[145], ‘the fountain of all public and private law.’ Boys learnt it by heart down to the days of Cicero, and he, despite his admiration for things Greek, declares it to surpass the libraries of all the philosophers[146].

Footnote 145:

‘Decem tabularum leges quae nunc quoque in hoc immenso aliarum super alias acervatarum legum cumulo fons omnis publici privatique est iuris’ (iii. 34).

Footnote 146:

‘Bibliothecas mehercule omnium philosophorum unus mihi videtur xii tabularum libellus, siquis legum fontes et capita viderit, et auctoritatis pondere et utilitatis ubertate superare’ (_De Orat._ i. 44). An odd comparison, and one in which there is more of patriotism than of philosophy.

For some generations there seem to have been comparatively few large changes in private law, except that declaration of the right of full civil intermarriage between patricians and plebeians, which the Twelve Tables had denied. But the knowledge of the days on which legal proceedings could properly be taken remained confined to the patricians for nearly a century and a half after the Decemvirs. The plebs had, however, been winning political equality, and three or four years after the time when the clerk Flavius revealed these pontifical secrets it was completed by the admission of the plebeians to the offices of pontiff and augur.

Meanwhile Rome was conquering Italy. The defeat of Pyrrhus in B.C. 275 marks the virtual completion of this process. A little later, the First Punic War gave her most of Sicily as well as Sardinia and Corsica, and these territories became provinces, administered by magistrates sent from Rome. She was thus launched on a policy of unlimited territorial expansion, and one of its first results was seen in two remarkable legal changes. The increase in the power and commerce of Rome, due to her conquests, had brought a large number of persons to the city, as residents or as sojourners, who were not citizens, and who therefore could not sue or be sued according to the forms of the law proper to Romans. It became necessary to provide for the litigation to which the disputes of these aliens (_peregrini_) with one another or with Romans gave rise, and accordingly a Magistrate (_Praetor peregrinus_) was appointed whose special function it became to deal with such disputes. He was a principal agent in building up by degrees a body of law and a system of procedure outside the old law of Rome, which received the name of _ius gentium_ (the law of the nations) as being supposed to embody or be founded on the maxims and rules common to the different peoples who lived round Rome, or with whom she came in contact[147]. Through the action of the older Urban Praetor much of this _ius gentium_ found its way into the law administered to the citizens, in the way described in the last preceding Essay. Similarly the Proconsuls and Propraetors, who held their courts in the subject provinces, administered in those provinces, besides the pure Roman law applicable to citizens, a law which, though much of it consisted of the local laws and customs of the particular province, had, nevertheless, a Roman infusion, and was probably in part, like the _ius gentium_, generalized from the customs found operative among different peoples, and therefore deemed to represent general principles of justice fit to be universally applied. The Edicts which embodied the rules these magistrates applied became a source of law for the respective provinces[148].

Footnote 147:

As to the _ius gentium_ see Essay XI, p. 128 sqq.

Footnote 148:

As to this see Essay II, vol. i. p. 91.

These remarkable changes, which may be said to belong to the period which begins with the outbreak of the First Punic War (B.C. 264), started Roman law on a new course and gave birth to a new set of institutions whereby new territories, ultimately extended to embrace the whole civilized world, were organized and ruled. It was through these changes that the law and the institutions of the Italian City became so moulded as to be capable not only of pervading and transforming the civilizations more ancient than her own, but of descending to and influencing the modern world. Now these changes, like those which marked the period of the Twelve Tables, had their origin in political events. In the former case it was internal discontent and unrest that were the motive forces, in the latter the growth of dominion and of trade, trade being the consequence, not so much of industrial development as of dominion. But in both cases—and this is generally true of the ancient world as compared with the modern—political causes play a relatively greater part than do causes either of an economic or an intellectual and speculative order[149].

Footnote 149:

Of course I do not mean to disparage the immense importance of economic causes always and everywhere, but in the ancient world, where communities were mostly small, they tended more quickly to engender political revolutions, and thus their action became involved with politics. In the modern world, where nations are mostly large and political change is usually more gradual, economic factors frequently tell upon society and affect the working of institutions without leading to civil strife. The more the world develops and settles down, and the further it moves away from its primitive conditions, the greater becomes the relative significance of the economic elements.

How much is to be set down to external influences? The Roman writers tell us of the sending out of a body of roving commissioners to examine the laws of Athens and other Greek cities to collect materials for the preparation of the Twelve Tables. So too the contact of Rome with the Greek republics of Southern Italy in the century before the Punic Wars must have affected the Roman mind and contributed to the ideas which took shape in the _ius gentium_. Nevertheless any one who studies the fragments of the Twelve Tables will find in them comparatively few and slight traces of any foreign influence; and one may say that both the substance of the Roman law and the methods of procedure it followed remain, down till the end of the Republic, so eminently national and un-Hellenic in their general character that we must assign a secondary part to the play of foreign ideas upon them.

The next epoch of marked transition is that when the Empire of Rome had swollen to embrace the whole of the West except Britain and Western Mauretania, and the whole of the known East except Parthia[150]. It was the epoch when the Republican Constitution had broken down, not merely from internal commotions, but under the weight of a stupendous dominion, and it was also the epoch when the philosophies of Greece had made the Roman spirit cosmopolitan, and dissolved the intense national conservatism in legal matters which distinguished the older jurists. Here, therefore, two forces were at work. The one was political. It laid the foundations of new institutions, which ripened into the autocracy of the Empire. It substituted the Senate for the popular Assembly as the organ of legislation. It gave the head of the State the power of practically making law, which he exercised in the first instance partly as a magistrate, partly through the practice of issuing to selected jurists a commission to give answers under his authority[151]. The other force was intellectual. It made the amendment of the law, in a liberal and philosophical sense, go forward with more boldness and speed than ever before, until the application of the new principles had removed the cumbrousness and harshness of the old system. But it should be remembered that this intellectual impulse drew much of its power from political causes, because the extension of the sway of Rome over many subject peoples had accustomed the Romans to other legal systems than their own, and had led them to create bodies of law in which three elements were blent—the purely Roman, the provincial, and those general rules and maxims of common-sense justice and utility which were deemed universally applicable, and formed a meeting-ground of the Roman and the provincial notions and usages. So here too it is political events that are the dominant and the determining factor in the development both of private law and of the imperial system of government, things destined to have a great future, not only in the form of concrete institutions adopted by the Church and by mediaeval monarchy, but also as the source of creative ideas which continued to rule men’s minds for many generations.

Footnote 150:

‘Parthos atque Britannos’ are aptly coupled by Horace as the two peoples that remained outside the Empire.

Footnote 151:

Described in the last preceding Essay, p. 257.

Nearly three centuries later we come to another epoch, when two forces coincide in effecting great changes in law and in administration. The storms that shook and seemed more than once on the point of shattering the fabric of the Empire from the time of Severus Alexander to that of Aurelian (A.D. 235 to 270), had shown the need for energetic measures to avert destruction; and the rise to power of men of exceptional capacity and vigour in the persons of Diocletian and Constantine enabled reforms to be effected which gave the imperial government a new lease of life, and made its character more purely despotic. Therewith came the stopping of the persecution of the Christians, and presently the recognition of their religion as that which the State favoured, and which it before long began to protect and control. The civil power admitted and supported the authority of the bishops, and when doctrinal controversies distracted the Church, the monarchs, beginning from Constantine at the Council of Nicaea, endeavoured to compose the differences of jarring sections.

These changes told upon the law as well as upon institutions. New authorities grew up within the Church, and these authorities, after long struggles, obtained coercive power. Not only was the spirit of legislation in such subjects as slavery and the family altered—marriage and divorce, for instance, began to be regarded with new eyes—but a fresh field for legislation was opened up in the regulation of various ecclesiastical or semi-ecclesiastical matters, as well as in the encouragement or repression of certain religious opinions. The influence on law of Greek customs, which seemed to have been expunged by the extension of citizenship to all subjects a century before Constantine, makes itself felt in his legislation.

Besides these influences belonging to the sphere of politics and religion, economic causes, less conspicuous, but of grave moment, had also been at work in undermining the social basis of the State and inducing efforts to apply new legislative remedies. Slavery and the decline of agriculture, particularly in the Western half of the Empire, throughout which there seems to have been comparatively little manufacturing industry, had reduced the population and the prosperity of the middle classes, and had exhausted the source whence native armies could be drawn. Thus social conditions were changing. The growth of that species of serfdom which the Romans called _colonatus_ belongs to this period. The financial strain on the government became more severe. New expedients had to be resorted to. All these phenomena, coupled with the more autocratic character which the central government of the Empire took from Diocletian onwards, induced a greater and sometimes indeed a hasty and feverish exuberance of legislation, which was now effected solely by imperial ordinances.

Industrial decay seems to have been more rapid in Western than in the Eastern provinces, though palpable enough in such regions as Thrace and Greece. But everywhere there was an intellectual decline, which appeared not least in the sinking of the level of juristic ability and learning. The great race of jurists who adorned the first two and a half centuries of the Empire had long died out. We hear of no fertile legal minds, no law books of merit deserving to be remembered, during the fourth and fifth centuries of our era. The mass of law had however increased, and the judges and practising advocates were, except in the larger cities, less than ever capable of dealing with it. The substitution of Roman for provincial law effected by the Edict of the Emperor Antoninus Caracalla had introduced some confusion, especially in the Eastern provinces, where Greek or Oriental customs were deeply rooted, and did not readily give place to Roman rules. The emperors themselves deplore the ignorance of law among practitioners: and presently it was found necessary to prescribe an examination for advocates on their admission to the bar. Accordingly the necessity for collecting that which was binding law and for putting it into an accessible form became greater than ever. It had in earlier days been an ideal of perfection cherished by theorists; it was now an urgent practical need. It was not the bloom and splendour but the decadence of legal study and science that ushered in the era of codification. A century after the death of Constantine, the Emperor Theodosius II, grandson of Theodosius the Great, reigning at Constantinople from A.D. 408 to A.D. 450, issued a complete edition of the imperial constitutions in force, beginning from the time of Constantine, those of earlier Emperors having been already gathered into two collections (compiled by two eminent jurists) in current use. Shortly before a statute had been issued giving full binding authority to all the writings (except the notes of Paul and Ulpian upon Papinian) of five specially famous jurists of the classical age (Papinian, Paul, Gaius, Ulpian, Modestinus). The advisers of Theodosius II had intended to codify the whole law, including the ancient statutes and decrees of the Senate and Edicts of magistrates so far as they remained in force, as well as the writings of the jurists, but the difficulties were too great for them, and they contented themselves with a revised edition of the more recent imperial constitutions.

Justinian was more energetic, and his codification of the whole law of the Empire marks an epoch of supreme importance in the history not merely of Rome but of the civilized world, for it is possible that without it very little of the jurisprudence of antiquity would have been preserved to us, so that the new nations which were destined to emerge from the confusion of the Dark Ages might have lacked the foundation on which they have built up the law of the modern world. It is indeed an epoch which stands alone both in legal and in political history.

Justinian’s scheme for arranging and consolidating the law included a compilation of extracts from the writings of the jurists of the first three centuries of the Empire, together with a collection of such and so many of the Constitutions of the Emperors as were to be left in force, both collections being revised so as to bring the contents of each into accord and to harmonize the part of earlier date (viz. that which contained the extracts from the old jurists) with the later law as settled by imperial ordinances. It was completed in the space of six years only—too short a time for so great a work. It was followed by a good deal of fresh legislation, for the Emperor and his legal minister Tribonian, having had their appetite whetted, desired to amend the law in many further points and reduce it to a greater symmetry of form and perfection of substance. The Emperor moreover desired, for Tribonian was probably something of a Gallio in such matters, to give effect to his religious sentiments both by laying a heavy hand on heretics and by making the law more conformable to Christian ideas. Thus the time of Justinian is almost as significant for the changes made in the substance of the law as for the more compendious and convenient form into which the law was brought.

Some thirty years before the enactment of Justinian’s Codex and Digest (which, though intended for the whole Empire, did not come into force in such Western provinces as had already been lost) three collections of law had been made by three barbarian kings for the governance of their Roman subjects. These were the _Edictum_ of Theodorich, King of the East Goths, published in A.D. 500, the _Lex Romana Visigothorum_, commonly called the _Breviarium Alaricianum_, published by Alarich II, King of the West Goths (settled in Aquitaine and Spain), in A.D. 506, a year before his overthrow by Clovis, and the _Lex Romana Burgundionum_, published by the Burgundian King Sigismund in the beginning of the sixth century. These three compilations, each of which consists of a certain number of imperial Constitutions, with extracts from a few jurists, ought to be considered in relation to Justinian’s work, partly because each of them did for a part of the Roman West what he did for the East, and, as it turned out, for Italy and Sicily also, when Belisarius reconquered those countries for him, and partly because they were due to the same need for accessible abridgements of the huge mass of confused and scattered law which prompted the action of Justinian himself. They are parts of the same movement, though they have far less importance than Justinian’s work, and, unlike his, include little or no new law.

The main cause of the tendency to consolidate the law and make it more accessible was the profusion with which Diocletian and his successors had used their legislative power, flooding the Empire with a mass of ordinances which few persons could procure or master, together with the decline of legal talent and learning, which made judges and advocates unable to comprehend, to appropriate and to apply the philosophical principles and fine distinctions stored up in the treatises of the old jurists. Here, therefore, political and intellectual conditions, conditions rather of decline than of progress, lay at the root of the phenomenon. But in the case of Justinian something must also be credited to the enlightened desire which he, or Tribonian for him, had conceived of removing the complexities, irregularities and discrepancies of the old law, bringing it nearer to what they thought substantial justice, and presenting it in concise and convenient form. Plato desired to see philosophy in the seat of power, and in Justinian philosophic theory had a chance such as it seldom gets of effecting permanently important changes by a few sweeping measures. Yet theory might have failed if it had not been reinforced by the vanity of an autocrat who desired to leave behind him an enduring monument.

This rapid survey has shown us that two forces were always operative on the development of Roman law—internal political changes and the influence of the surrounding countries. As Rome conquered and Romanized them, they compelled her institutions to transform themselves, and her law to expand. Economic conditions, speculative thought and religion had each and all of them a share in the course which reforms took, yet a subordinate share.

IV. OUTLINE OF THE PROGRESS OF LEGAL CHANGES IN ENGLAND.

Let us now turn to England and see what have been the forces that have from time to time brought about and guided the march of legal change, and what have been the relations of that change to the general history of the country.

As with Rome we began at the moment when the ancient customs were first committed to writing and embodied in a comprehensive statute, so in England it is convenient to begin at the epoch when the establishment of the King’s Courts enabled the judges to set about creating out of the mass of local customs a body of precedents which gave to those customs definiteness, consistency and uniformity. Justice, fixed and unswerving justice, was in the earlier Middle Ages the chief need of the world, in England as in all mediaeval countries; and the anarchy of Stephen’s reign had disposed men to welcome a strong government, and to acquiesce in stretches of royal power that would otherwise have been distasteful. Henry II was a man of great force of character and untiring energy, nor was he wanting in the talent for selecting capable officials. He had to struggle, not only against the disintegrating tendencies of feudalism, but also against the pretensions of the churchmen, who claimed exemption from his jurisdiction, and maintained courts which were in some directions formidable rivals to his own. He prevailed in both contests, though it was not till long after that the victory was seen to have remained with the Crown. It was his fortune to live at a time when the study of law, revived in the schools of Italy, had made its way to England, where it was pursued with a zeal which soon told upon the practice of the Courts, sharpening men’s wits and providing for them an arsenal of legal weapons. It is true that the law taught at the Universities was the Roman law, and that the practitioners were almost entirely ecclesiastics. Now the barons, however jealous they might be of the Crown, were not less jealous of ecclesiastical encroachments and of the imperial law. They could not prevent judges from drawing on the treasures which the jurists of ancient Rome had accumulated, but they did prevent the Roman law from becoming recognized as authoritative; so that whatever it contributed to the law of England came in an English guise, and served rather to supplement than to supersede the old customs of the kingdom.

In this memorable epoch, which stamped upon the common law of England a character it has never lost, the impulse which the work of law-making received came primarily from the political circumstances of the time, that is, from the desire of the king to make his power as the receiver of taxes and the fountain of justice effective through his judges, and from the sense in all classes that the constant activity of the Courts in reducing the tangle of customs to order, no less than the occasional activity of the king when he enacted with the advice and consent of his Great Council statutes such as the Constitutions of Clarendon, was a beneficial activity, wholesome to the nation. But though political causes were the main forces at work, much must also be allowed to the influence of ideas, and particularly to the intellectual stimulus and the legal training which the study of Roman jurisprudence had given to the educated men who surrounded and worked for the king and the bishops.

The development of English institutions has been at all times so slow and so comparatively steady that it is not easy to fix upon particular epochs as those most conspicuously marked by change. However I take the epoch of Edward I and Edward III. Under Edward I, whose reign was one of comparative domestic tranquillity, the organ of government whose supreme legislative authority was to become unquestioned took its final shape in passing from a Great Council of magnates to an Assembly consisting of two Houses, in one of which the chief tenants of the Crown sat, while the other was composed of representatives of the minor tenants and of boroughs. Under his grandson the chief judicial Minister of the Crown began to sit as a Court, granting redress in the name of the Crown in cases or by methods which the pre-existing Courts were unable or unwilling to deal with. Parliament passed under Edward I some statutes of the first magnitude, such as _Quia Emptores_ and _De Donis Conditionalibus_, which impressed a peculiar character on the English land system, and introduced some valuable improvements in the sphere of private rights and remedies. But the legislature was, for two or three centuries, in the main content to leave the building up of the law to the old Common Law Courts and (in later days) to the Chancellor. The action of this last-named officer was, during the fifteenth, sixteenth and seventeenth centuries, of capital importance, so that the establishment of his jurisdiction is one of the landmarks of our legal history. It was really a renewal, two hundred years after Henry II’s time, of that king’s effort to secure the due administration of justice through the realm, but it grew up naturally and spontaneously, with less of conscious purpose than Henry II had shown. Both the legislature and the Chancellor were the outcome of political causes, but it must not be forgotten that in the methods taken by the Chancellor (hardly reduced to a system till the seventeenth century) we find the working of a foreign influence which thereafter disappears from English law, that, namely, of the civil and canon laws of Rome and of the Roman Church, for the Chancellors of the fourteenth and fifteenth centuries were all ecclesiastics and drew largely from Roman sources.

The days of the Reformation bring two new and powerful influences to bear upon laws and institutions. One of these influences is economic, the other religious. The growth of industry and trade had so far disintegrated the old structure of society and brought about new conditions that not a few new laws, among which the most familiar and significant are the Statute of Uses and the Statute of Wills, were now needed. The nation was passing out of the stiffness of a society based on landholding and recognizing serfdom into a larger and freer life. At the same time the religious revolution which severed it from Rome, which was accompanied by the dissolution of the monasteries, and which ended by securing the ascendency of a new body of theological ideas and of simpler forms of worship, involved many legal changes. The ecclesiastical courts were shorn of most of their powers, and the law they administered was cut off from the influences that had theretofore moulded and dominated it. The position of the clergy was altered. New provisions for the poor soon began to be called for. New tendencies, the result of a bolder spirit of inquiry, made themselves felt in legislation. One sees them stirring in the mind of Sir Thomas More. It was some time before the religious and economic changes took their full effect upon the law. But nearly all the remarkable developments that make the time of Henry VIII and Elizabeth an epoch of legal change, may be traced not so much to politics as to the joint influence of commerce (including the growth of personal, as distinguished from real, property) and of theology. Even the oceanic power and territorial expansion of England, which began with the voyages of Drake and the foundation of the Virginia Company and of the East India Company, did not affect either the law or the institutions of the country. The establishment of distant settlements was largely the result of the growing force of commercial enterprise, in which there was at first very little of political ambition, though it cordially lent itself to a political antagonism first to Spain and then to France.

With the time of the Great Civil War we return to an era in which, though religion and commerce continue to be potent forces, the first place must again be assigned to political causes. The struggle which overthrew the old monarchy effected two things. It extinguished the claims of the Crown to a concurrent legislative or quasi-legislative power. The two Houses of Parliament were established as an engine for effecting legal changes, prompt in action and irresistible in strength[152]. Towards this England had long been slowly tending, as during a century before Augustus Rome slowly tended to a monarchy. The work was completed at the Boyne and Aughrim, but the decisive blow was struck at Naseby. And, secondly, it occasioned the accomplishment of several broad and sweeping reforms in institutions as well as in law proper. A Parliamentary Union of England, Scotland and Ireland was effected which, though annulled by the Restoration, was a significant anticipation of what the following century was to bring. The old system of feudal tenure and the relics of feudal finance were abolished. New provisions were made, and old ones confirmed and extended, for the protection of the freedom of the subject in person and estate. Commercial transactions were regulated, perhaps embarrassed, by a famous enactment (the Statute of Frauds) regarding the evidence required to prove a contract. Such of these things as lay outside the purely political sphere were due partly to the development of industry and commerce, which had gone on apace during the reign of James I, and was resumed during the government of Cromwell and Charles II, partly to that sense which political revolutions bring with them, that the time has come for using the impulse of liberated forces to effect forthwith changes which had for a long time before been in the air. On a still larger scale, it was the Revolution and Empire in France that led to the remodelling of French institutions and the enactment of Napoleon’s Codes[153].

Footnote 152:

As Milton says:—

‘And that two-handed engine at the door Stands ready to strike once and strike no more.’

Footnote 153:

Although the Napoleonic government was in many things only completing work begun under Lewis the Fourteenth.

As usually happens, an era of abnormal activity in recasting institutions and in amending the law was followed by one of comparative quiescence. It was not till the middle of the reign of George III that the beginnings of a new period of transition were apparent, not till after the Reform Bill of 1832 that the largest among the many reforms towards which men’s minds had been ripening were effected. These reforms, which have occupied the last sixty-seven years, have touched every branch of law. They include a great mitigation of the old severity of the criminal law and the introduction of provisions for repressing those new offences which are incident to what is called the progress of society. They have expunged the old technicalities of pleading by which justice was so often defeated. They have striven to simplify legal procedure, though they have not succeeded in cheapening it, and have fused the ancient Courts of Common Law with those of Equity. They have removed religious disqualifications on the holding of offices and the exercise of the suffrage. They have dealt with a long series of commercial problems, and have in particular made easy the creation of corporations for business and other purposes, given limited liability to their members, and laid down many regulations for their management. They have altered the law of land, enlarging the powers of life owners, and rendering it easier to break entails. They have reorganized the fiscal system, simplified the customs duties, and established a tariff levied for revenue only. They have codified the law, mainly customary in its origin, relating to such topics as negotiable instruments, sale and partnership. They have created an immense body of administrative law, extending and regulating the powers of various branches of the central government, and, while remodelling municipal government, have created new systems of rural local government. As regards the central institutions of the country, several new departments of State have been called into being. Ecclesiastical property has been boldly handled, though not (except in Ireland) diverted to secular uses; a new Court of Appeal for causes coming from the extra-Britannic dominions of the Crown has been set up, and the electoral franchise has been repeatedly extended.

These immense changes have been due to three influences. The first was the general enlightenment of mind due to the play of speculative thought upon practical questions which marked the end of last and the beginning of this century, and of which the most conspicuous apostles were Adam Smith in the sphere of economics and Jeremy Bentham in the sphere of legal reform. The second was the rapid extension of manufacturing industry and commerce, itself largely due to the progress of physical science, which has placed new resources at the command of man both for the production and for the transportation of commodities. The third influence was political, and was itself in large measure the result of the other two, for it was the combination of industrial growth with intellectual emancipation that produced the transfer of political power and democratization of institutions which went on from the Roman Catholic Emancipation Act of 1829 to the Local Government Act of 1894. Could we imagine this industrial and intellectual development to have failed to work on political institutions as it in fact did work, it would hardly the less have told upon administration and upon private law, for the new needs would under any form of government, even under an oligarchy like that of George II’s time, have given birth to new measures fitted to deal with them. The legislation relating to Joint Stock Companies (beginning with the Winding-Up Acts), which filled so important a place in the English Statute-book from 1830 to 1862, and which still continues, though in a reduced stream, would under any political conditions have been required owing to the growth of commerce, the making of railways, the increased need for the provision of water, gas and drainage. And there went on, hand and hand with it, an equally needed development by the Courts of Equity of the law of partnership, of agency and of trusts, as applied to commercial undertakings. What the political changes actually did was to provide a powerful stimulus to reform, and an effective instrument for reform, while reducing that general distaste for novelties which had been so strong in the first half of the eighteenth century.

If we now review the general course of changes in institutions and law in the two States selected for comparison we shall be struck by two points of difference.

V. SOME DIFFERENCES BETWEEN THE DEVELOPMENT OF ROMAN AND THAT OF ENGLISH LAW.

The branch of private law which is most intimately connected with the social and economic habits of a nation, and which, through social and economic habits, most affects its character, is that branch which touches Property, and the connexion of property with the Family. The particular form which the institutions relating to property, especially immovable property, take, tells upon the whole structure of society, especially in the earlier stages of national growth. The rules, for instance, which govern the power of an owner to dispose of his property during his life or by will, and those which determine the capacity of his wife and children to acquire for themselves by labour or through gift, and to claim a share in his estate at his decease if he dies intestate, or even against his last will—these rules touch the richer and middle classes in a community and affect their life. So one may perhaps say that the development of this branch of law comes nearer than any other to being the central line of legal development, bearing in mind that it is the needs and wishes of the richer and middle classes which guide the course of legal change. Here, however, we discover an interesting point of comparison between Roman and English legal history.

At Rome it is the history of the Family, especially as taken on its economic or pecuniary side, the most important part of which is the Law of Inheritance, that plays the largest part. The old rules, which held the Family together, and vested in the father the control of family property, were at first stringent. From the third century B.C. onwards they began to be modified, but they were so closely bound up with the ideas and habits of the people that they yielded very slowly, and it was not till the bold hand of Justinian swept away nearly all that remained of the ancient rules of succession, and put a plain and logical system in their place, that the process was complete.

In England, on the other hand, it is the Law of Land that is the most salient feature in the economico-legal system of the Middle Ages. Among the Teutons the Family had not been, within historic times at least, a group closely bound together as it was among the Italians, whereas the historical and political conditions of the eleventh and twelfth centuries had in Western Europe made landholding the basis of nearly all social and economic relations. Hence the land customs then formed took a grip of the nation so tight that ages were needed to unloose it. The process may be said to have begun with a famous statute (_Quia Emptores_) in the reign of Edward I. Its slow advance was quickened in the seventeenth century by political revolution; and the Act of 1660 which abolished knight service recorded a great change. The peaceful revolution of 1832 gave birth to the series of statutes which from 1834 down to our own day have been reshaping the ancient land system, but reshaping it in a more piecemeal and perplexing fashion than that in which Justinian reformed the law of succession by the 118th and 127th Novels. Problems connected with landholding still remain in England, as they do in nearly all States, especially where population is dense; but they differ from the old problems, and though disputes relating to the taxation of land give trouble, and may give still more trouble, questions of tenure have lost the special importance which made them once so prominent in our legal history.

Both Rome and England have been, far beyond any other countries except Russia, expanding States. Rome the City became Rome the World-State. The Folk of the West Saxons went on growing till it brought first the other kingdoms of South Britain, Teutonic and Celtic, then the adjoining isles of Ireland and Man, then a large part of North America, then countless regions far away over the oceans under the headship of the descendants of Cerdic and Alfred. But in the case of Rome this expansion by conquest was the ruling factor in political and legal evolution, the determining influence by which institutions were transformed. In England, on the other hand, it is the relations of classes that have been the most active agency in inducing political change, and the successive additions of territory have exerted a secondary influence on institutions and an insignificant influence on law. Not only has English law been far less affected (save at the first two of the five epochs above described) by foreign law or foreign thought than Rome was, but the increase of England by the union, first of Scotland and then Ireland, and by the acquisition of transoceanic dominions, has not interrupted the purely insular or national development of English law. The conquest of Ireland, which began in the twelfth century but was not completed till the seventeenth, made no difference, because Ireland, always since the twelfth century far behind England in material progress and settled social order, received a separate civil administration with separate Courts. As these Courts administered English law, they followed in the path which England had already travelled and did not affect the progress of law in England. Nothing speaks more of the long-continued antagonism of the Teutonic and the Celtic elements in Ireland, and of the dominance of the Teutonic minority over the Celtic majority, than the practical identity of the common law in the two countries, and the total absence of any Celtic customs in that law. The few and comparatively slight differences which exist to-day between the law of England and that of Ireland are all due to statute. One is the absence of judicial divorce in Ireland, which an Act passed so recently as 1857 introduced in England. The second is to be found in the law relating to land, largely altered by statutes passed for Ireland by the British Parliament of our own time. The third is the existence in Ireland of what are admitted to be exceptional and supposed to be temporary penal provisions, the last of which is the Prevention of Crime Act of 1887. As regards Scotland, when her king became king of England, and when, a century later, her Parliament was united with that of England, she retained her own law intact. In some few respects her law, founded on that of Rome, and her system of judicial administration are better than those of England, nor has she failed to contribute distinguished figures to the English bench and bar; but, as she stands far below England in population and wealth, she has affected the law of the larger country as little as the attraction of the moon affects the solid crust of the Earth.

The vaster territorial expansion of the eighteenth and nineteenth centuries has told quite as little on the law of England as did the unions with Scotland and Ireland. When the English began to people what are now the self-governing colonies, and when India came under British sway, English law was too fully developed to be susceptible to influences from them, not to add that they were too distant to make any assimilation either desirable or possible. Had India lain no further from England than Sicily and the Greek cities lay from Rome, had she been as near the level of English civilization as those countries were to that of Roman civilization, and had she been conquered in the reign of Elizabeth instead of in the reign of George III, the history of English institutions and English law must have been wholly unlike what it has in fact been. These three differences measure the gulf which separates the course of English from that of Roman development.

Another salient point in which the two States may be compared relates to the smaller part which purely political as compared with economic and intellectual changes have played in the development of English laws and institutions. Although there is a sense in which every political change may be described as the result of an economic or intellectual change, or of both taken together, still it is true that at Rome the desire to grasp political power counted for more in the march of events than it has done in England.

Economic changes sometimes operate on politics by raising the material condition of the humbler class and thereby disposing and enabling them to claim a larger share of political power. This happened at Rome more frequently in the earlier than in the later days of the Republic. In England it has happened more in later times than it did in earlier. Sometimes, however, economic causes so depress the poor that their misery becomes acute or their envy intense, whence it befalls that they break out into revolt against the rich. This was on the point of happening more than once at Rome, but has been no serious danger in England since the days of Richard II. Sometimes, again, the growth of immense fortunes and the opportunities of gaining wealth through politics threaten the working of popular institutions. This occurred at Rome; and was one of the causes which brought the Republic to its death. It is a peril against which England has had, and may again have, to take precautions.

Changes in thought and belief operate on politics either by weakening the deferential and submissive habits of the classes which have been excluded from power so that they insist on having their fair share of it, or by implanting in the minds of the middle and upper classes new ideas which grow strong enough to make them insist on bringing old-fashioned practice into accord with new and more enlightened theory. It was the concurrence of these two forms of intellectual change that gave its specially destructive character to the French Revolution. Ideas of course act most quickly and powerfully when they are such as rouse emotion, for that which remains a mere intellectual concept or speculative opinion is not a thing to stir or to shake established institutions. The best illustration is to be found in religious beliefs. But the notion of Equality—that is to say, the notion that rights vested in every man as a man demand that every man shall be treated alike—has also proved an energetic explosive. Influences of this kind counted for little at Rome. Neither have they, except in the form of religious beliefs, or when their force coincided with that exerted by religious convictions, become the source of strife or constitutional change in England.

One may indeed say that the course of England’s political development has been less interrupted by convulsions than that of any other great State, for even the scars made by the Civil War were before long healed, so that hardly any of the old institutions perished, though some of them passed into new phases. The new buildings which popular government has within the present century added to the old edifice are built out of the same kind of stone, and (if one may venture to pursue the metaphor) weather to the same colour. So the growth of our law, both public and private, both criminal and civil, has been a gradual and quiet growth, due in the main to the steady increase in the magnitude and complexity of the industrial and commercial relations of life, which have made the law expand and improve at the bidding of practical needs. Where politics have affected the law, this has been through the rise of the humbler classes, a rise largely due to economic causes. So likewise the influence of ideas, of new views as to what law should be and how it should serve the community, has been marked by few sudden crises, and has been ruled by practical good sense rather than by aspirations after a theoretical perfection. As regards private law, this remark applies to the Romans also, although the constant strain placed upon their institutions by their territorial expansion as well as the differences between a City State and a large rural State exposed their political system to more frequent shocks and ultimately to a more radical transformation.

Finally, it may be observed that the interest felt in law, and the amount of intellectual effort given to its development, was probably greater among the educated class in Rome than it has ever been in any large section of the English people. Romans of intellectual tastes had fewer things to think about, fewer subjects to attract or to distract them, than the English have had. Law was closely interwoven with public life. Country life and country sports, commerce, religion, travel and adventure, covered less of the mental horizon than these pursuits have covered to Englishmen of the upper or educated class, so that more of thought and time was left to be devoted to law. Nor were many Romans carried off into other regions, like the Greeks, by the love of art, or of music, or of abstract speculation.

From this reflection another arises, viz. that legal and constitutional studies, as a subject for research and thought, find the competition of other subjects more severe in England to-day than they did in the eighteenth century[154]. Historical inquiries, economic inquiries, and, to a still larger extent, inquiries in the realm of Nature, claim a far larger share in the interest of eager and active minds now than in the days of Hobbes or Locke or Bentham. They have done much to extrude law from the place it once held among subjects of interest to unprofessional persons. This is true all over the world; but legal topics, whether constitutional or belonging to the sphere of penal or administrative, or international or ordinary private law, seem now to claim even fewer votaries in England than they do in France or Germany, and certainly fewer than they do in the United States.

Footnote 154:

I owe this observation to my friend Mr. Dicey.

VI. OBSERVATIONS ON FRANCE AND GERMANY.

The sketch which I have sought to draw of the relations of general history to legal history might have been with advantage extended to include the legal history of other States, and particularly of two such important factors in modern civilization as France and Germany. But, apart from the undue length to which an essay would stretch if it tried to cover so large a field, there is a good reason why we may deem these two countries less well suited for the sort of comparative treatment here essayed. Neither of them has had the kind of independent and truly national legal development which belonged to Rome and belongs to England. Each of them started on its career with a body of pre=existing law, made elsewhere, viz. the Roman law which had come down to France and to Germany from antiquity. In Gaul, even in the parts most settled by the Franks, the law of the Empire held its ground, though everywhere largely modified by feudal land usages, and in the northern half of the country, when it had ceased to be Gaul and had become France, in the form of customs and not of written Roman texts. In Germany the old Teutonic customary law was by degrees (except as regards land rights) supplanted by the _Corpus Iuris_ of Justinian, in conformity with the idea, fantastic as that idea now appears to us, which regarded the Roman Emperors from Julius Caesar down to Constantine the Sixth as the predecessors in title of the Saxon and Franconian Emperors. Thus neither the French nor the Germans built up on their own national foundation a law distinctively their own. Moreover, both Germany and France stand contrasted with England as well as with Rome in the fact that neither country ever had a true central legislature or central system of law courts comparable with the Parliament and King’s Courts of England. The German Diet, though enactments were occasionally made in it with its consent by the sovereign, enactments which however were not universally obeyed, dealt very little with law proper, even in the days of its greatest strength. Still less were the French States-General, even before their long eclipse, an effective legislature. Thus the development of the law of both Germany and France fell mainly into the hands of the jurists, qualified to some extent in Germany by the ordinances enacted by the electors, landgraves, and other princes, as well as by the free al’ cities, and (in later days) by the kings whose dominions formed part of the decaying Empire, and qualified in post-mediaeval France by the ordinances of the king. In both countries it was upon the Roman law, as modified by custom, that the jurists worked, and hence in neither did a body of law grow up which was truly national, in the sense either of having a distinctive national quality or of embracing the whole nation or of having been enacted by a national legislature. The first complete unity given to law in France was given by Napoleon. His Code was based on the Roman law theretofore used, which had to a considerable extent been already codified under Lewis XIV; yet the creation of one Code for the whole country was a step so bold that it could hardly have been attempted except by an autocrat and on the morrow of a revolution. The first modern effort to give unity to law in Germany, itself an efflux of the aspiration for national unity, was made by the General Bills of Exchange Law (_Wechselordnung_) (1848-1850), while a general Commercial Code (_Gemeines Handelsgesetzbuch_) enacted in various States between 1862 and 1866 was re-enacted for the new Empire in 1871. The fuller unity long desired was attained in 1900, when the new general Code for the whole German Empire came into force. This similarity between the legal history of France and that of Germany seems the more curious when one remembers that, so far as mere political unity is concerned, France attained that unity comparatively early, one may say at the end of the fifteenth century, while Germany continued down till the extinction of the old Empire in 1806 to go on losing what political unity she had possessed. It was not till 1866 that she began to regain it, though the Customs Union of the German States, formed in 1829, had been a presage of what was coming.

VII. PRIVATE LAW LEAST AFFECTED BY POLITICAL CHANGES OR DIRECT LEGISLATION.

One phenomenon is common to the legal history in all these nations. That part of the law which has the greatest interest for the scientific student, and the greatest importance for the ordinary citizen, the private civil law of family and property, of contracts and torts, has been the part least affected either by political changes or by direct legislation. It has been evolved quietly, slowly and almost imperceptibly, first by popular custom, then by the labours of jurists and the practice of the Courts. Direct legislation by the supreme power has stepped in chiefly to settle controversies between conflicting authorities, or to expunge errors too firmly rooted for judges to rectify, or to embody existing usage in a definite and permanent form. In the sphere of private law, and even in that of criminal law (so far as not affected by politics), legislation scarcely ever creates any large new rule, and seldom even any minor rule which is absolutely new, not an enlargement of something which has gone before. Pure legislative novelties mostly turn out ill. Fortunately, the good sense of Englishmen, like that of Romans, has rarely permitted them to appear.

The parallel drawn between the history of Roman and that of English law is less instructive when we reach the later stages of that history. It cannot be made complete, not only because we know comparatively little of the inner condition and practical working of the Courts after the time of Constantine, but because there was after his time both a political and an intellectual decay, which few will profess to discover in the England of this century. The expansion and enrichment of the Roman system had stopped even before Constantine, while that of English Law is still proceeding[155]. In England commerce is still growing, education is still advancing, new and complicated problems are still emerging, so that many forces continue to work for the development of law. Though we cannot foresee what lines this development will follow we may feel sure that some of the old causes of change are disappearing. The democratization of political institutions seems nearly complete, religious passions have grown cold, and all classes have been so fully admitted to a share in political power that any such bold reforms in central and local administration, in procedure, in penal law, and in one or two departments of private civil law as followed the Reform Bill of 1832, seem improbable. In some departments the possibilities of further progress appear to be exhausted, though there are others, such as those concerned with questions of the right of combination among employers or among workmen, and the character which motive imparts to acts in themselves lawful on which the last word is far from having been said[156]. But there are at least two real difficulties which remain to be grappled with. One relates to the methods of legal proceedings. Their cost is so great as to deter many persons from the attempt to enforce just claims, to impose a heavy and unfair burden upon successful litigants, and to furnish opportunities for blackmail (especially in libel cases) to men who are equally devoid of money and of scruples. All efforts to cheapen them have so far failed. The other problem relates to a matter of substance. What are the general principles to be followed in empowering the State to regulate the conduct of individuals or groups of individuals, in permitting the central government or a local authority to compete with individuals in industrial enterprises, and in restricting the power of combinations formed for commercial or industrial objects? This group of problems are being daily pressed to the front by political forces on the one hand and by industrial progress on the other. They are as urgent in the United States as in Britain. Nor are they matters for legislation only, for cases frequently arise which the best legislation cannot count upon having provided for, and which it needs not only technical skill but also a philosophic grasp of principles on the part of the bar and bench to conduct to a solution. The experience of the ancient world and that of the Middle Ages throws little light upon them. But as they have appeared simultaneously in many modern nations, each may have something to learn from the others. Comparative jurisprudence has no more interesting field than this: nor is there any task in labouring on which an enlightened mind may find a wider scope for the devotion of learning and thought to the service of the community.

Footnote 155:

Within two centuries after Justinian’s time official abridgements of his _Corpus Iuris_ began to be issued, and it was virtually superseded in the end of the ninth century by the _Basilica_ of the Emperor Leo the Philosopher. The action of his successors was largely directed to cutting down the old law into a shape better fitted for the changed conditions of the Empire, and the declining intelligence of the people.

Footnote 156:

The interest excited by cases such as those of the _Mogul Steamship Company_ v. _Macgregor_ and _Allen_ v. _Flood_ illustrates this.

I am tempted to venture on some other predictions as to the influences that may be expected to work on the legal changes of the coming century. But we have been pursuing an historical, not a speculative, inquiry, and it will be enough to suggest that industry and commerce, as quickened by the progress of physical science, are likely to be factors of increasing power, and that the purely political element in the development of law will count for less than that contributed by the effort to readjust social conditions and to give effect to social aspirations.

XVI

MARRIAGE AND DIVORCE UNDER ROMAN AND ENGLISH LAW

I. INTRODUCTORY.

In all communities that have risen out of the savage state, no legal institution is at once so universal, and also so fundamental, a part of their social system as is Marriage. None affects the inner life of a nation so profoundly, or in so many ways, ethical, social, and economic. None has appeared under more various forms, or been more often modified by law, when sentiment or religion prescribed a change. In a famous passage which has been constantly quoted, and often misunderstood, Ulpian takes marriage as the type of those legal relations which are prescribed by the Law of Nature, and extends that Law so far as to make it govern the irrational creatures as well as mankind[157]. If then the relation be so eminently natural, one might expect it to be also uniform. Yet it so happens that there is no relation with which custom and legislation have, in different peoples and at different times, dealt so differently. Nature must surely have spoken with a very uncertain voice when, as the jurist says, she ‘taught this law to all animals.’ Nor does this infinite diversity show signs of disappearing. While in most branches of law the progress of parallel development in various civilized states is a progress towards uniformity, so that the commercial law, for instance, of the chief European countries and of the United States is, as respects nineteen-twentieths of its substance, practically identical, the laws of these same countries are, in what relates to the forms of contracting marriage, the effect of marriage upon property rights, the grounds for dissolving and modes of dissolving marriage, extremely different, and apparently likely to remain different. Even within the narrow limits of the United Kingdom, England and Scotland have each its own system. Ireland has a different law from England in respect of the mode of solemnization; while, as respects divorce, the divergence goes so far that grounds are recognized as sufficient for divorce in Scotland which are not admitted in England, while in Ireland a divorce, except by private Act of Parliament, cannot be obtained at all. And the efforts to assimilate these three diverse systems made by reformers during two or three generations have been followed by so little practical result that they have been of late years altogether dropped.

Footnote 157:

See Essay XI, p. 150.

Out of the long and obscure and intricate history of the subject, and out of the many still unsolved problems it presents, I propose to select one subject for discussion, viz. the history of the Roman law of the marriage relation, as compared with the English law, and particularly with some of the later developments of English law in the United States. On the antiquities of the matter, and in particular on the interesting and difficult questions relating to primitive forms of marriage, and to the polyandry which is supposed to have marked the earlier life of many peoples, I shall not attempt to touch. Neither can I do more than glance at the ecclesiastical history of the institution, important as the church has been in influencing civil enactments and moulding social sentiment.

To elucidate the Roman system, some few technical details must be given, but I shall confine myself to those which are needed in order to facilitate a comparison between it and that of England, and to show how essentially the later Roman conception of the relation differed from that which Christianity created in mediaeval Europe.

II. CHARACTER OF MARRIAGE IN EARLY LAW.

When clear light first breaks upon the ancient world round the Mediterranean Sea we find that the relation of the sexes exists in three forms. The most savage tribes, such as those which Herodotus saw or heard of in Libya and Scythia, have no regular marriage at all. Some lived in a kind of promiscuity; some were probably polyandrous. The Eastern peoples—Persians, Lydians, Babylonians, and so forth—are polygamous, as was Israel in the days of Moses and Solomon, though in a much lesser degree after the Captivity, and as was the Trojan Priam of the Homeric poems. The Western peoples, and especially the Greeks and the Italians, were, broadly speaking, monogamous, although concubinage superadded to lawful marriage, especially among the Greeks, was not unknown. The contrast of the East and the West was marked; and this particular difference was not only characteristic but momentous, since it presaged a different course for the social development of the two regions[158]. So when the Teutonic and Celtic peoples came later on the stage, they too were generally monogamous, though among the heathen Celts the tie seems to have been somewhat looser than among the Teutons, and a plurality of wives may have been not uncommon in heathen times. Tacitus, while dwelling on the sanctity of German marriages, observes that occasionally the chieftains had more than one wife, owing to the wish of other families for alliance with them[159]. Polygamy slowly died out of the East under Roman rule, though possibly never quite extinguished, for we find prohibitions of it renewed by the Emperors down to Diocletian, before whose time all subjects had become citizens. It maintained itself in the Oriental court of the Sassanid kings of Persia, and was indeed one of the features of Persian life which most shocked the philosophers of the later Roman Empire. As there is no trace of it in the Roman law[160], it need not concern us further, since it has never, except in the singular instance of the Mormons, reappeared in any of the communities which have been regulated either by Roman or by Teutonic law[161].

Footnote 158:

Euripides (_Androm._ vv. 173-180) contrasts the marriage usages of barbarians and Greeks, and dilates (cf. v. 465 sqq.) on the evils of polygamy.

Footnote 159:

Tac. _Germ._ c. xvii.

Footnote 160:

Although Julius Caesar, if we may credit Suetonius, caused a measure to be drafted for enabling him to marry as many wives as he liked for the sake of having legitimate issue (Suet. _Julius_, c. 52).

Footnote 161:

Among the Jews it was (though forbidden by Roman law) not formally abolished till the tenth century.

Before describing the Roman system, let us note three general features which belong to the marriage customs, not indeed of all, but certainly of most peoples in the earlier stages of civilization. They are worth noting, because they constitute the central threads of the history of the relation during civilized times.

1. The marriage tie has more or less of a religious or sacred character, being generally entered into with rites or ceremonies which place it under supernatural sanctions. This is, of course, more distinctly the case where monogamy prevails.

2. In the marriage relation the husband has a predominant position both as regards control over the person and conduct of the wife, and as regards property, whether that which was hers or that which was brought into common stock by her and by him.

3. The tie is comparatively easy of dissolution by the husband, less easily dissoluble by the wife. This is a natural consequence of the inferior position which she holds in early society.

Although these three features are generally characteristic of the earlier stages of family law, they are not universally present; and their presence or absence in any given community does not necessarily coincide with a lower or higher scale of civilization in that community. The temptation to generalize in these matters is natural, but it is dangerous. True as may seem the general proposition, that the higher or lower position of women in any society is a pretty good index to the progress that society has made, there are too many exceptions to the rule for us to take it as a point of departure for inquiry. Nor can these exceptions be always accounted for by any one cause, such as race or religion.

III. THE EARLIER FORM OF ROMAN MARRIAGE LAW.

Now let us come to the Romans, of whom we may say that it is they who have built up the marriage law of the civilized world, partly by their action as secular rulers in pagan times, partly by their action as priests in Christian times. The other modifying elements, and particularly the Hebrew and Teutonic influences, which have worked upon the marriage laws of Christendom, are of quite inferior moment.

Roman law begins with two phenomena which seem at first sight inconsistent. One is the complete subjection of the wife to the husband on the legal side, as regards both person and property. The other is her complete equality on the social and moral side, as regards her status and the respect paid to her.

In describing the nature of this subjection, one must make it clearly understood that, strictly speaking, it was not by the mere fact of marriage, that is to say, by the legal act necessary to constitute marriage, that a woman entered that position of absolute absorption into the legal personality of her husband which is so remarkable a feature of the old law. Whatever may have been the case in prehistoric times, we find that at the time when the Twelve Tables were enacted (B.C. 449) a marriage could be contracted without any forms or ceremonies whatever, by the sole consent of the parties; and that, where this was the case, the husband did not acquire any power over the wife, and the latter retained whatever property she previously possessed. It was therefore not marriage _per se_ that created the power of the husband, for a woman might be legally married and not be under the marital power. But although this ‘free marriage,’ as we may call it (the term is not Roman, but invented by modern jurists), was legally possible, the custom, and in old days the almost invariable custom, of the people was to add to the marriage a ceremony not essential to its validity as a marriage, but one which had important legal consequences. We may safely assume that there was originally no true marriage without the ceremony, but at the time of the Twelve Tables this was no longer the case. The ceremony created a relation which the Romans called Hand (_manus_), and brought the wife into her husband’s power, putting her, so far as legal rights went, in the position of a daughter (_filiae loco_). It gave the husband all the property she had when she married. It entitled him to all she might acquire afterwards, whether by gift or by her own labour. It enabled him to command her labour, and even to sell her, though the sale neither extinguished the marriage nor made her a slave, but merely enabled the purchaser to make her work, while still requiring him to respect her personal rights[162]. In compensation for these disadvantages the wife became entitled to be supported by her husband, and to receive a share of his property at his death, as one of the ‘family heirs’ (_sui heredes_), whom he could disinherit only in a formal way. She had by coming under his Hand passed out of her original family, and lost all right by the strict civil law to share in the inheritance of her father.

Footnote 162:

Some writers doubt whether this power of sale existed, and refer to a supposed ‘law of Romulus’ mentioned by Plutarch which devoted to the infernal gods whoever sold his wife. But the balance seems to incline in favour of the existence of the power.

There were two forms of ceremony by which this power of the Hand could be created. One, probably the older, had a religious character. It took place in the presence of the chief pontiff, and its main feature was a sacrifice to Jupiter, with the eating by the bride and bridegroom of a cake of a particular kind of corn (_far_), whence it was called _confarreatio_. It was originally confined to members of the patrician houses. The other was a purely civil act, and consisted in the sale by the bride of herself, with the approval of her father or her guardian (as the case might be), to the bridegroom, apparently accompanied (though there is a controversy on this point) by a contemporaneous sale by the bridegroom of himself to the bride. The transaction was carried out with certain formal words and in the presence of five witnesses (being citizens)[163], besides the man who held the scales with which the money constituting the price was supposed to be weighed. The price was of course nominal, though it had in very early times been real.

Footnote 163:

There has been much dispute as to this ceremony: I give what seems the most probable view. It may descend from a more ancient sale of the wife by her relatives to the husband, similar to that which we find in some primitive peoples.

These two forms have been frequently spoken of as if they were indispensable forms of marriage, so that marriage had always the Hand power as its consequence. But this, though it may probably have been the case in very early days, was not so in those historical times to which I must confine myself. And the proof of this may be found in the fact that if a woman was married without either of the above forms, she did not pass into the Hand of her husband unless or until she had lived with him for a year, and not even then if she had absented herself from his house for three continuous nights during that year[164]. And where the Hand power had not been created, the property rights of the wife, whatever they were[165], remained unaffected by the marriage. The period of three nights is fixed in the Twelve Tables, possibly as a precise definition of a custom previously more uncertain.

Footnote 164:

This was in pursuance of the general rule that rights over a movable were acquired by a year’s continuous holding: ‘usus auctoritas fundi biennium, caeterarum rerum annuus esto.’

Footnote 165:

If she was in the power (_potestas_) of her father, she had no property of her own. If she was _sui iuris_, she was under guardianship.

This was the old Roman system, and a very singular system it was, because it placed side by side the extreme of marital control as the normal state of things and the complete absence of that control as a possible state of things. Doubtless the marriages with Hand were in early days practically universal, resting upon a sentiment and a social usage so strong that women themselves did not desire the free marriage, which would put them in an exceptional position, outside the legal family of the husband. Nor can we doubt that the wide power which the law gave to the husband was in point of fact restrained within narrow limits, not only by affection, but also by the vigilant public opinion of a comparatively small community.

IV. CHANGE FROM THE EARLIER TO THE LATER SYSTEM AT ROME.

Before the close of the republican period the rite of _confarreatio_ practically died out, or was referred to as an old-world curiosity, much as a modern English lawyer might refer to the power of excommunication possessed by ecclesiastical authorities. The patrician houses had become comparatively few, and the daughters of those that remained evidently did not wish to come under the Hand power[166]. The form of _coemptio_, which all citizens might use, lasted longer, and seems to have been not infrequently applied in Cicero’s time. Two centuries later it also was vanishing, and Gaius tells us that the rule under which uninterrupted residence created the husband’s power of Hand, and might be stopped by the wife’s three nights’ absence, had completely disappeared (Gai _Inst._ i. 111). So we may say broadly that from the time of Julius Caesar onwards the marriage without Hand had become the rule, while from the time of Hadrian onwards the legal acts that had usually accompanied marriage, which placed the wife under the husband’s control, were almost obsolete.

Footnote 166:

Nevertheless it was retained in a few families for the purpose of providing persons who could hold four great priestly offices, since by ancient usage none save those born from a marriage with confarreation were able to serve these priesthoods. But its operation seems to have been restricted by a decree of the senate so as to apply only so far as religious rites were concerned (_quoad sacra_) (Gai _Inst._ i. 136).

This was a remarkable change. The Roman wife in the time of the Punic Wars had, with rare exceptions, been absolutely subject to her husband. She passed out of her original family, losing her rights of inheritance in it. Her husband acquired all her property. He could control her actions. He sat as judge over her, if she was accused of any offence, although custom required that a sort of council of his and her relatives should be summoned to advise him and to see fair play. He could put her to death if found guilty. He could (apparently) sell her into a condition practically equivalent to slavery, and could surrender her to a plaintiff who sued him in respect of any civil wrong she had committed, thereby ridding himself of liability. One can hardly imagine a more absolute subjection to one person of another person who was nevertheless not only free but respected and influential, as we know that the wife in old Rome was. It would be difficult to understand how such a system worked did we not know that manners and public opinion restrain the exercise of legal rights.

Such was the old practice. Under the new one, universal in the time of Domitian and Trajan, which is also the time of Tacitus, Juvenal and Martial, the Roman wife was absolutely independent of her husband, just as if she had remained unmarried. He had little or no legal power of constraint over her actions. Her property, that which came to her by gift or bequest as well as that which she earned, remained her own to all intents and for all purposes. She did not enter her husband’s family, and acquired only a very limited right of intestate succession to his property.

This striking contrast may be explained by the fact that the disabilities which attached to the wife under the old system were not in legal strictness the consequence of marriage itself, but of legal acts which an almost universal sentiment and custom had attached to marriage, though in themselves acts distinct from it. A perfectly valid marriage could exist without these legal acts, and so far back as our authorities carry us, we find that a few, though probably originally only a very few, marriages did take place without them. Accordingly when sentiment changed, and custom no longer prescribed the use of confarreation or coemption, the power of Hand vanished of itself and vanished utterly. Had it been an essential part of the marriage ceremony, it would doubtless have been by degrees weakened in force and accommodated to the ideas of a new society. But no legislation was needed to emancipate the wife. The mere omission to apply one or other of the old concomitants gave the marriage relation all the freedom the parties could desire and perhaps more than was expedient for them.

We may now dismiss these ancient forms and address ourselves to the position of the wife under the normal marriage of later times—the so-called ‘free marriage,’ since this is the form in which the Roman institution descended to and has affected modern law[167].

Footnote 167:

I pass by the distinction between _iustae nuptiae_, which could be contracted only between Roman citizens, and the so-called ‘natural’ marriage, or _matrimonium iuris gentium_, which was created by the marriage of a full citizen to a half citizen or an alien (_peregrinus_), because the latter is of no consequence for our purpose, and practically disappeared when all Roman subjects became citizens. It was a perfectly valid marriage, and the children were legitimate. As to their status, see Gai _Inst._ i. 78, 79.

V. LATER MARRIAGE LAW: PERSONAL RELATION OF THE CONSORTS.

The following points deserve to be noted as characterizing the Roman view.

The act whereby marriage was contracted was a purely private act. No intervention of any State official, no registration or other public record of any sort was required. The two parties, and the two parties only, were deemed to be concerned[168].

Footnote 168:

Where either party was subject to the paternal power of his or her father (or grandfather), the consent of the father (or grandfather) (or both) was required, though in a few specified cases it might be either dispensed with or compelled. This was a consequence of the Roman family system. It was irrespective of the age of bride or bridegroom.

The act was a purely civil act, to which no religious or ecclesiastical rite was essential either in heathen or in Christian times. There were indeed what may be called decorative ceremonies, some of which we find mentioned in poems like the famous Epithalamium of Catullus, but they had no more to do with the legal nature and effect of the matter than has the throwing of old shoes or rice at a modern English wedding.

The act required no prescribed form. It consisted solely in the reciprocally expressed consent of the parties, which might be given in any words, or be subsequently presumed from facts. ‘Marriage is contracted by consent only’ (_nuptiae solo consensu contrahuntur_) is the invariable Roman maxim. Even the conducting of the bride to the bridegroom’s house, which has sometimes been represented as necessary[169], seems to have been regarded rather as evidence needed in certain cases than as essential to the validity of the act[170]. A generally prevalent usage made a formal betrothal (_sponsalia_) precede the actual wedding. But the betrothal promise created no legal right. No action lay upon it, such as that which English and Anglo-American law unfortunately allows to be brought for breach of promise of marriage. In early times formal and binding stipulations seem to have been often made on each side between the bridegroom and the father (or other male relative) of the bride for the giving and receiving of the bride; and if the promise were broken without sufficient cause, an action lay against the party in fault for the worth of the marriage[171]. This, however, disappeared. Under the influence of a more refined sentiment, not only could no promise of marriage be enforced, but if the parties made a contract whereby each bound him or herself to the other in a penal sum to become payable in case of breach, such a provision was held to be disgraceful (_pactum turpe_) as well as invalid. This was the law of later republican and imperial times. Betrothal had, however, some legal effects. It entitled either of the betrothed parties to bring an action for an injury (of an insulting nature) offered to the other. It rendered any one infamous who being betrothed to one person contracted betrothal to another. It entitled either party, if the espousal was broken off before marriage, to reclaim whatever gifts he or she might have bestowed upon the other.

Footnote 169:

The Emperor Majorian (A.D. 455-461) is said to have issued a constitution for the Western Empire, making the creation of a _dos_ essential to the validity of a marriage: but this provision, which can hardly have been intended to be general, seems to have never taken effect. The Western Empire was then in the throes of dissolution.

Footnote 170:

See Paul., _Sent. Recept._ xix. 8; _Dig._ xxii. 2. 5. The suggestion which may be found in some modern writers that Marriage fell within the class of the contracts created by the delivery of an object (the so-called Real Contracts), has no Roman authority in its favour, and is indeed based on a misconception of the nature of those four contracts, in all of which the obligation created is for the restoring of the object delivered. Marriage is assuredly not a bailment.

Footnote 171:

This was at any rate a usage among the Latins; but how far in Rome seems doubtful.

As regards personal status, the wife acquired that of her husband (unless either had been formerly a slave), and his domicil became hers. In the old days of Hand power she had taken the name of his _gens_, but now she retained her own, besides her personal ‘first name’ (_praenomen_) (_e.g._ Tertia)[172]. Each spouse being interested in the character and reputation of the other, he could sue for damages if any insult was offered to her, she for insult to him. He is bound to support her in a manner suitable to their rank, whatever her private means may be. Though each can bring an action against the other, the action must not be one which affects personal credit and honour (_actio infamans_), and hence, though each has his and her own property, neither can proceed against the other by a civil action of theft, even if the property seized was seized in contemplation of a divorce[173]. It need hardly be added that if the wife’s father, or grandfather, were living, she would remain, unless she had been emancipated, subject to the paternal power, being for all legal purposes a member of her original family and not of her husband’s. But the person in whose power she is cannot (at least in imperial days) take her away from her husband. Antoninus Pius forbade a happy marriage to be disturbed by a father; and in the third century (perhaps earlier) the husband could proceed by way of interdict to compel a father to restore his wife to him[174].

Footnote 172:

Under the Empire we usually find women using two names, from their father’s _gens_ and family (e.g. _Caecilia Metella_). Sometimes, it would seem, the name of the father’s _gens_ was followed by one taken from the mother (e.g. _Iunia Lepida_, _Annaea Faustina_). The subject is fully discussed by Mommsen, in his _Römisches Staatsrecht_.

Footnote 173:

A special action (_rerum amotarum_) was given in this case. Some jurists held that the joint enjoyment of household goods made the conception of Theft inapplicable to a wife’s dealings, however unauthorized, with her husband’s property. _Dig._ xxv. 2. 1.

Footnote 174:

_Dig._ xliii. 30. 2.

VI. LATER LAW. PECUNIARY RELATIONS OF THE CONSORTS.

This curiously detached position of the two consorts expressed itself in their pecuniary relations. Each had complete disposal of his or her property by will as well as during life, though the wife needed, down to a comparatively late time, the authority of her guardian[175]. Neither had originally any right of succession to the other in case of intestacy, nor had the wife any right of intestate succession to her children nor they to her, except that which the Praetor gave them among the blood relatives (_cognati_) generally, after the agnates (persons related through males). A state of things so inconsistent with natural feeling could not however always continue, so the Praetor created a rule of practice whereby each consort had a reciprocal right of succession to the other. But even in doing so, he placed this succession after that of other blood relations, as far as the children of second cousins. This postponement of a consort to blood relatives was carried even further by Justinian’s legislation, for that emperor extended the category of relatives who could succeed in case of intestacy, and made no provision for the wife (beyond that which the Praetor had made), except to some small degree in case of a necessitous widow. The relationship of mother and child received a somewhat fuller recognition, for laws (_Senatus Consultum Tertullianum_, _Sc. Orphitianum_) of the time of Hadrian and Marcus Aurelius gave the mother and the children reciprocal rights of inheritance[176], which, finding a place in the general scheme of succession based on consanguinity which Justinian established, have passed into modern law.

Footnote 175:

The guardianship of women of full age seems to have died out after women received power to select a guardian for themselves, a change which of course made his action purely formal.

Footnote 176:

The mother’s succession was originally granted only where she had borne three children (if a freed-woman, four).

Distinct as were the personalities of the two consorts in respect of property, the practical needs of a joint life recommended some plan under which a provision might be made for the expenses of a joint household. This sprang up as soon as marriages without the concomitant creation of the Hand power had grown common. It became usual for the wife to bring with her land or goods, either her own, if she were independent, or bestowed by her father or other relative. This property, which was destined for the support of the married pair and their children, was called the _Dos_, a term which, since it denotes the wife’s contribution to the matrimonial fund, must not be translated by our English word Dower, for that term describes the right of a wife who survives her husband to have a share in his landed estate. Many rules sprang up regarding the _Dos_, rules probably due in the first instance to custom, for as the instruments of marriage contracts were usually drawn on pretty uniform lines, these lines ultimately became settled law[177]. The general principle came to be that property given from the wife’s side, whether by her father, or by herself, or by some of her relatives, became subject to the husband’s right of user while the marriage lasted, as enabling him to fulfil his obligation to support wife and children, but at the expiry of the marriage by the death (natural or civil) of either party, or by divorce, reverted to the wife or her heirs[178]. If, however, the property had been bn 414.png given by the wife’s father, he might, if still living, reclaim it[179]. The _Dos_ is said by the Romans to be given for the purpose of supporting the burden of married housekeeping, and therefore the administration and usufruct of it pertain to the husband, while the ultimate ownership remains in the wife, or in the father who constituted it, as the case may be. In the later imperial period a sort of second form of matrimonial property was introduced, called the gift for the sake of marriage (_donatio propter nuptias_). It was made by the husband, and remained his property both during and after the marriage. So far, as it was only theoretically separated from other parts of the husband’s estate, it might seem to have no importance. But if he became insolvent, it did not, like the rest of his property, pass to his creditors, but went over to the wife, just as the _Dos_, although administered by the husband, remained unaffected by his insolvency. And just as the husband was entitled, where a divorce was caused by the wife’s fault, to retain a part of the _Dos_, so if a divorce was caused by the husband’s fault, the _donatio propter nuptias_, or a part of it, might be claimed by the injured wife. The similarity of some of these arrangements to the practice of English marriage settlements will occur to every one’s mind, though in England settlements are always created and governed by the provisions of the deeds which create them, whereas in Rome, although special provisions were frequently resorted to, there arose a general legal doctrine whose provisions were applicable to gifts made upon or in contemplation of marriage.

Footnote 177:

The ‘custom of conveyancers’ has worked itself into English law in a somewhat similar way.

Footnote 178:

This was the rule as settled by Justinian. Before his time, the husband took the _Dos_ at the wife’s death unless it had been given by her father.

Footnote 179:

There are many less important rules regarding the extent of the husband’s interest and the form in which the property is to be restored at the end of the marriage, which it is not necessary to set forth, as they do not affect the general principle. Indeed generally through these pages I am forced, for the sake of clearness and brevity, to omit a number of minor provisions.

One further point needs to be mentioned. It was a very old customary (or, as we should say, common law) rule of Roman law that neither of the wedded pair could during the marriage bestow gifts upon the other, the reason assigned being the risk that one or other might by the exercise of the influence arising from their relation be deprived of his or her property to his or her permanent damage (_ne mutuato amore invicem spoliarentur_). This principle, which protects the wife from being either wheedled or bullied out of her separate property, and may be compared with the English restraint on alienation or anticipation applied to a wife’s settled property, was also held to be occasionally needed to protect the husband’s interests, and those of the children, from suffering at the hands of a grasping wife. It issues from the view which the Roman jurists enounce that affection must not be abused so as to obtain pecuniary gain; and one jurist adds that if either party were permitted to make gifts the omission to make them might lead to the dissolution of the marriage, and so the continuance of marriages would be purchasable[180]. Such gifts were accordingly held null and void, the only exception being that where property actually given had been left in the donee’s hands until the donor’s death, the heir of the donor could not reclaim it from the surviving donee. Needless to say that the rule only covered serious transfers of property, and did not apply to gifts of dress or ornaments or such other tokens of affection as may from time to time pass between happy consorts.

Footnote 180:

‘Sextus Caecilius et illam causam adiciebat, quia saepe futurum esset ut discuterentur matrimonia si non donaret is qui posset atque ea ratione eventurum ut venalicia essent matrimonia.’ This view was sanctioned by the Emperor Caracalla in his speech to the senate, which introduced the exception next mentioned in the text; _Dig._ xxiv. 1. 2.

VII. GENERAL CHARACTER OF THE ROMAN CONCEPTION OF MARRIAGE.

Reviewing the rules which regulated marriage without the Hand Power, the sole marriage of the classical times of Roman law, we are struck by three things.

The conception of the marriage relation is an altogether high and worthy one. A great jurist defines it as a partnership in the whole of life, a sharing of rights both sacred and secular[181]. The wife is the husband’s equal[182]. She has full control of her daily life and her property. She is not shut up, like the Greek wife, especially among the Ionians, in a sort of Oriental seclusion, but moves freely about the city, not only mistress of her home, but also claiming and receiving public respect, though so far placed on a different footing from men, and judged by a standard more rigid than ours, that it was deemed unbecoming for her to dance and shocking for her to drink wine.

Footnote 181:

‘Nuptiae sunt coniunctio maris et feminae et consortium omnis vitae, divini et humani iuris communicatio;’ Modestinus in _Dig._ xxiii. 2. 1.

Footnote 182:

This was expressed in the phrase which the bride anciently used when brought to the husband’s house: ‘Ubi tu Gaius, ego Gaia.’

The marriage relation is deemed to be wholly a matter of private concern with which neither the State nor (in Christian times) the Church has to concern itself. This was so far modified under the Emperors, that the State, from the time of Augustus, began to try to discourage celibacy and childlessness in the interests of the maintenance of an upper class Roman population, as opposed to one recruited from freed men and strangers. But these efforts were not, as we shall see, incompatible with adherence to the general principle that the formation and dissolution of the tie required no State intervention, nor even any form prescribed by State authority.

The marriage relation rests entirely on the free will of the two parties[183]. If either having promised to enter it refuses to do so, no liability is incurred. If either desires to quit it, he or she can do so. Within it, each retains his or her absolute freedom of action, absolute disposal of his or her property.

Compulsion in any form or guise is utterly opposed to a connexion which springs from free choice and is sustained by affection only.

These principles have a special interest as being the latest word of ancient civilization before Christianity began to influence legislation. They have in them much that is elevated, much that is attractive. They embody the doctrines which, after an interval of many centuries, have again begun to be preached with the fervour of conviction to the modern world, especially in England and the United States, by many zealous friends of progress, and especially by those who think that the greatest step towards progress is to be found in what is called the emancipation of woman.

Footnote 183:

‘Libera matrimonia esse antiquitus placuit,’ says the Emperor Severus Alexander in the third century. _Cod._ viii. 38. 2.

VIII. DIVORCE IN ROMAN LAW.

Let us now see how the Roman principles aforesaid worked out in practice as regards domestic morality and the structure of society, that structure depending for its health and its strength upon the purity of home life at least as much as it does upon any other factor.

The last of the above-stated three principles is the derivation of all the attributes of the marriage relation from the uncontrolled free will of the parties. This principle is applied to the continuance of the relation itself. With us moderns the tie is a permanent tie, which, though freely formed, cannot be freely dissolved, whether by one of the parties or by both. Very different was the Roman view. To them it is even less binding than an ordinary business contract. Take for instance a bargain made between _A_ and _B_ for the sale and purchase of a house. Such a bargain creates what the Romans call an obligation, a bond of law (_vinculum iuris_) which enables either of the contracting parties to require the other to fulfil his promise, or to pay damages in case of default. In Roman law the act of entering into marriage creates no such bond. The business contract can be rescinded only by the consent of both the parties to it. The marriage relation can be terminated by the will of one only. Each party in forming it promised only that he, or she, would remain united to the other so long as he, or she, desired so to remain united. This is the logical consequence of the principle that marriages should be free; this was how the Romans understood that principle.

Accordingly divorce can be effected by either party at his or her pleasure, the doctrine of equality between the sexes being impartially applied, so that the wife may just as freely and easily divorce her husband as the husband may divorce his wife.

The early history of the matter is somewhat obscure, and need not detain us. It would seem probable that in the old days when marriage was accompanied by the Hand power, a husband might put away his wife if she had been convicted before the domestic council of certain grave offences[184]; and we gather that in such cases she was entitled to demand her emancipation, _i.e._ the extinction of the Hand power, by the proper legal method thereto appointed. Such cases were, however, extremely rare. When marriage unaccompanied by Hand power became frequent, we do not at first hear of any divorces. Our authorities declare that the first instance of divorce at Rome (they probably mean the first where no crime was alleged) was furnished by a certain Spurius Carvilius Ruga, who in B.C. 231 got rid of his wife, although warmly attached to her, on account of her sterility. Universal displeasure fell upon him for his conduct: and when L. Antonius put away his wife without summoning a council of friends and laying the matter before them, the Censors removed him from his tribe. But before long other husbands were found to imitate Spurius Carvilius. In the second century B.C. divorce was no longer rare. In the days of Julius Caesar it had become common, and continued to be so for many generations. The fragrance of religious sentiment had ceased to hallow marriage, and in the general decline of morals and manners it was one of the first institutions to suffer degradation. Not only Cn. Pompey, but such austere moralists as Cato the younger and the philosophic Cicero put away their wives: Cato his after thirty years of wedded life, Cicero two in rapid succession.

Footnote 184:

A so-called ‘law of Romulus’ is said to have enumerated poisoning the children, adultery, and the use of false keys as grounds justifying the husband in divorcing his wife, no parallel right being granted to her. And there seems to have been a provision regarding divorce in the Twelve Tables.

How far this decline had gone, even before the days of Cato and Cicero, appears from the singular speech delivered by Q. Caecilius Metellus, Censor in B.C. 131, in which he recommended a law for compelling everybody to marry, observing that if it were possible to have no wives at all, everybody would gladly escape that annoyance, but since nature had so ordained that it was not possible to live agreeably with them, nor to live at all without them, regard must be had rather to permanent welfare than to transitory pleasure[185]. We are told that both men and women, especially rich women, were constantly changing their consorts, on the most frivolous pretexts, or perhaps not caring to allege any pretext beyond their own caprice. Nothing more than a declaration of the will of the divorcing party was needed: and this was usually given by the husband in the set form of words, ‘keep thy property to thyself’ (_tuas res tibi habeto_). Little or no social stigma seems to have attached to the divorcing partner, even to the wife, for public opinion, in older days a rigid guardian of hearth and home, had now, in a rich, luxurious, and corrupt society, a society which treated amusement as the main business of life, come to be callously tolerant. There were still pure and happy marriages, like that of Cn. Julius Agricola (the conqueror of Britain) and Flavia Domitilla; nor is it necessary to suppose that conjugal infidelity was the chief cause why unions were so lightly contracted and dissolved, for the mere whims of self-indulgent sybarites account for a great deal[186]. Still the main facts—the prevalence of divorce, the absence of social penalties, and the general profligacy of the wealthier classes—admit of no doubt.

Footnote 185:

‘Si sine uxore, Quirites, possemus esse, omnes ea molestia careremus, sed quoniam ita natura tradidit ut neque cum illis commode nec sine illis ullo modo vivi possit, saluti perpetuae potius quam brevi voluptati consulendum.’ Aul. Gell. _Noct. Att._ i. 6: cf. Liv. _Epit._