they die from a combination of the two, that is to say, some chronic
disease so reduces their vitality that a small amount of external
violence suffices to extinguish the waning life. It was so with the
dominion of Rome. To outward appearance it was the irruption of the
barbarians from the north that tore away the provinces in the west, as
it was the assault of the Turks in 1453 that gave the last death blow to
the feeble and narrowed Empire which had lingered on in the East. But
the dissolution and dismemberment of the western Roman Empire, beginning
with the abandonment of Britain in A.D. 411, and ending with the
establishment of the Lombards in Italy in A.D. 568, with the conquest of
Africa by the Arab chief Sidi Okba in the seventh century, and with the
capture of Sicily by Musulman fleets in the ninth, were really due to
internal causes which had been for a long time at work. In some
provinces at least the administration had become inefficient or corrupt,
and the humbler classes were oppressed by the more powerful. The
population had in many regions been diminished. In nearly all it had
become unwarlike, so that barbarian levies, raised on the frontier, had
taken the place of native troops. The revenue was unequal to the task of
maintaining an army sufficient for defence. How far the financial
straits to which the government was reduced were due to the exhaustion
of the soil, how far to maladministration is not altogether easy to
determine. They had doubtless been aggravated by the disorders and
invasions of A.D. 260-282. Neither can we tell whether the intellectual
capacity of the ruling class and the physical vigour of the bulk of the
population may not have declined. But it seems pretty clear that the
armies and the revenue that were at the disposal of Trajan would have
been sufficient to defend the Empire three centuries later, when the
first fatal blows were struck; and we may therefore say that it was
really from internal maladies, from anaemia or atrophy, from the want of
men and the want of money, perhaps also from the want of wisdom, rather
than from the appearance of more formidable foes, that the Empire
perished in the West.
British power in India shows no similar signs of weakness, for though
the establishment of internal peace is beginning to make it less easy to
recruit the native army with first-class fighting-men, such as the
Punjab used to furnish, it has been hitherto found possible to keep that
army up to its old standard of numbers and efficiency. Still the warning
Rome has bequeathed is a warning not to be neglected. Her great
difficulty was finance and the impoverishment of the cultivator. Finance
and the poverty of the cultivator, who is always in danger of famine,
and is taxed to the full measure of his capacity—these are the standing
difficulties of Indian administration; and they do not grow less, for,
as population increases, the struggle for food is more severe, and the
expenditure on frontier defence, including strategic railways, has gone
on rapidly increasing.
As England seems to be quite as safe from rebellion within India as was
Rome within her Empire, so is she stronger against external foes than
Rome was, for she has far more defensible frontiers, viz. the sea which
she commands, and a tremendous mountain barrier in whose barren gorges a
comparatively small force might repel invaders coming from a distance
and obliged to carry their food with them. There is really, so far as
can be seen at present, only one danger against which the English have
to guard, that of provoking discontent among their subjects by laying on
them too heavy a burden of taxation. It has been suggested that when the
differences of caste and religion which now separate the peoples of
India from one another have begun to disappear, when European
civilization has drawn them together into one people, and European ideas
have created a large class of educated and restless natives ill disposed
to brook subjection to an alien race, new dangers may arise to threaten
the permanence of British power. Such possibilities, however, belong to
a future which is still far distant.
It is, of course, upon England in the last resort that the defence of
India rests. The task is well within her strength, though serious enough
to make it fitting that a prudent and pacific spirit should guide her
whole foreign and colonial policy, that she should neither embark on
needless wars nor lay on herself the burden of holding down disaffected
subjects.
England must be prepared to command the sea, and to spare 80,000 of her
soldiers to garrison the country. Were she ever to find herself unable
to do this, what would become of India? Its political unity, which
depends entirely on the English Raj, would vanish like a morning mist.
Wars would break out, wars of ambition, or plunder, or religion, which
might end in the ascendency of a few adventurers, not necessarily
belonging to the reigning native dynasties, but probably either Pathans,
or Sikhs, or Musulmans of the north-west. The Marathas might rise in the
West. The Nepalese might descend upon Bengal. Or perhaps the country
would, after an interval of chaos, pass into the hands of some other
European Power. To India severance from England would mean confusion,
bloodshed, and pillage. To England however, apart from the particular
events which might have caused the snapping of the tie, and apart from
the possible loss of a market, severance from India need involve no
lasting injury. To be mistress of a vast country whose resources for
defence need to be supplemented by her own, adds indeed to her fame, but
does not add to her strength. England was great and powerful before she
owned a yard of land there, and might be great and powerful again with
no more foothold in the East than would be needed for the naval
fortresses which protect her commerce.
Happily, questions such as these are for the moment purely speculative.
II
THE EXTENSION OF ROMAN AND
ENGLISH LAW THROUGHOUT
THE WORLD
I. THE REGIONS COVERED BY ROMAN AND ENGLISH LAW.
From a general comparison of Rome and England as powers conquering and
administering territories beyond their original limits, it is natural to
pass on to consider one particular department of the work which
territorial extension has led them to undertake, viz. their action as
makers of a law which has spread far out over the world. Both nations
have built up legal systems which are now—for the Roman law has survived
the Roman Empire, and is full of vitality to-day—in force over immense
areas that were unknown to those who laid the foundations of both
systems. In this respect Rome and England stand alone among nations,
unless we reckon in the law of Islam which, being a part of the religion
of Islam, governs Musulmans wherever Musulmans are to be found.
Roman law, more or less modified by national or local family customs or
land customs and by modern legislation, prevails to-day in all the
European countries which formed part either of the ancient or of the
mediaeval Roman Empire, that is to say, in Italy, in Greece and the rest
of South-Eastern Europe (so far as the Christian part of the population
is concerned), in Spain, Portugal, Switzerland, France, Germany
(including the German and Slavonic parts of the Austro-Hungarian
monarchy), Belgium, Holland. The only exception is South Britain, which
lost its Roman law with the coming of the Angles and Saxons in the fifth
century. The leading principles of Roman jurisprudence prevail also in
some other outlying countries which have borrowed much of their law from
some one or more of the countries already named, viz. Denmark, Norway,
Sweden, Russia, and Hungary. Then come the non-European colonies settled
by some among the above States, such as Louisiana, the Canadian province
of Quebec, Ceylon, British Guiana, South Africa (all the above having
been at one time colonies either of France or of Holland), German
Africa, and French Africa, together with the regions which formerly
obeyed Spain or Portugal, including Mexico, Central America, South
America, and the Philippine Islands. Add to these the Dutch and French
East Indies, and Siberia. There is also Scotland, which has since the
establishment of the Court of Session by King James the Fifth in 1532
built up its law out of Roman Civil and (to some slight extent) Roman
Canon Law[33].
-----
Footnote 33:
There is scarcely a trace of Celtic custom in modern Scottish law. The
law of land, however, is largely of feudal origin; and commercial law
has latterly been influenced by that of England.
-----
English law is in force not only in England, Wales, and Ireland but also
in most of the British colonies. Quebec, Ceylon, Mauritius, South
Africa, and some few of the West Indian islands follow the Roman
law[34]. The rest, including Australia, New Zealand, and all Canada
except Quebec, follow English; as does also the United States, except
Louisiana, but with the Hawaiian Islands, and India, though in India, as
we shall see, native law is also administered.
-----
Footnote 34:
In these West Indian islands, however, that which remains of Spanish
law, as in Trinidad and Tobago, and of French law, as in St. Vincent,
is now comparatively slight; and before long the West Indies (except
Cuba and Puerto Rico, Guadeloupe and Martinique) will be entirely
under English law. See as to the British colonies generally, Sir C. P.
Ilbert’s _Legislative Methods and Forms_, chap. ix.
-----
Thus between them these two systems cover nearly the whole of the
civilized, and most of the uncivilized world. Only two considerable
masses of population stand outside—the Musulman East, that is, Turkey,
North Africa, Persia, Western Turkistan and Afghanistan, which obey the
sacred law of Islam, and China, which has customs all her own. It is
hard to estimate the total number of human beings who live under the
English common law, for one does not know whether to reckon in the
semi-savage natives of such regions as Uganda, for instance, or Fiji.
But there are probably one hundred and thirty millions of civilized
persons (without counting the natives of India) who do: and the number
living under some modern form of the Roman law is still larger.
It is of the process by which two systems which had their origin in two
small communities, the one an Italian city, the other a group of
Teutonic tribes, have become extended over nine-tenths of the globe that
I propose to speak in the pages that follow. There are analogies between
the forms which the process took in the two cases. There are also
contrasts. The main contrast is that whereas we may say that (roughly
speaking) Rome extended her law by conquest, that is, by the spreading
of her power, England has extended hers by settlement, that is, by the
spreading out of her race. In India, however, conquest rather than
colonization has been the agency employed by England, and it is
therefore between the extension of English law to India and the
extension of Roman law to the Roman Empire that the best parallel can be
drawn. It need hardly be added that the Roman law has been far more
changed in descending to the modern world and becoming adapted to modern
conditions of life than the law of England has been in its extension
over new areas. That extension is an affair of the last three centuries
only, and the whole history of English law is of only some eleven
centuries reckoning from Kings Ine and Alfred, let us say, to A.D. 1900,
or of eight, if we begin with King Henry the Second, whereas that of
Roman law covers twenty-five centuries, of which all but the first three
have witnessed the process of extension, so early did Rome begin to
impose her law upon her subjects. To the changes, however, which have
passed on the substance of the law we shall return presently. Let us
begin by examining the causes and circumstances which induced the
extension to the whole ancient world of rules and doctrines that had
grown up in a small city.
II. THE DIFFUSION OF ROMAN LAW BY CONQUEST.
The first conquests of Rome were made in Italy. They did not, however,
involve any legal changes, for conquest meant merely the reduction of
what had been an independent city or group of cities or tribes to
vassalage, with the obligation of sending troops to serve in the Roman
armies. Local autonomy was not (as a rule) interfered with; and such
autonomy included civil jurisdiction, so the Italic and Greco-Italic
cities continued to be governed by their own laws, which in the case at
least of Oscan and Umbrian communities usually resembled that of Rome,
and which of course tended to become assimilated to it even before Roman
citizenship was extended to the Italian allies. With the annexation of
part of Sicily in A.D. 230 the first provincial government was set up,
and the legal and administrative problems which Rome had to deal with
began to show themselves. Other provinces were added in pretty rapid
succession, the last being Britain (invaded under Claudius in A.D. 43).
Now although in all these provinces the Romans had to maintain order, to
collect revenue and to dispense justice, the conditions under which
these things, and especially the dispensing of justice, had to be done
differed much in different provinces. Some, such as Sicily, Achaia,
Macedonia and the provinces of Western Asia Minor, as well as Africa
(_i.e._ such parts of that province as Carthage had permeated), were
civilized countries, where law-courts already existed in the cities[35].
The laws had doubtless almost everywhere been created by custom, for the
so-called Codes we hear of in Greek cities were often rather in the
nature of political constitutions and penal enactments than summarized
statements of the whole private law; yet in some cities the customs had
been so summarized[36]. Other provinces, such as those of Thrace,
Transalpine Gaul, Spain, and Britain, were in a lower stage of social
organization, and possessed, when they were conquered, not so much
regular laws as tribal usages, suited to their rude inhabitants. In the
former set of cases not much new law was needed. In the latter set the
native customs could not meet the needs of communities which soon began
to advance in wealth and culture under Roman rule, so law had to be
created.
-----
Footnote 35:
Cicero says of Sicily, ‘Siculi hoc iure sunt ut, quod civis cum cive
agat, domi certet suis legibus; quod Siculus cum Siculo non eiusdem
civitatis, ut de eo praetor iudices sortiatur’; _In Verrem_, ii. 13,
32.
Footnote 36:
The laws of Gortyn in Crete, recently published from an inscription
discovered there, apparently of about 500 B.C., are a remarkable
instance. Though not a complete code, they cover large parts of the
field of law.
-----
There were also in all these provinces two classes of inhabitants. One
consisted of those who enjoyed Roman citizenship, not merely men of
Italian birth settled there but also men to whom citizenship had been
granted (as for instance when they retired from military service), or
the natives of cities on which (as to Tarsus in Cilicia, St. Paul’s
birthplace) citizenship had been conferred as a boon[37]. This was a
large class, and went on rapidly increasing. To it pure Roman law was
applicable, subject of course to any local customs.
-----
Footnote 37:
When I speak of citizenship, it is not necessarily or generally
political citizenship that is to be understood, but the citizenship
which carried with it private civil rights (those rights which the
Romans call _connubium_ and _commercium_), including Roman family and
inheritance law and Roman contract and property law. Not only the
civilized Spaniards but the bulk of the upper class in Greece seem to
have become citizens by the time of the Antonines.
-----
The other class consisted of the provincial subjects who were merely
subjects, and, in the view of the Roman law, aliens (_peregrini_). They
had their own laws or tribal customs, and to them Roman law was
primarily inapplicable, not only because it was novel and unfamiliar, so
strange to their habits that it would have been unjust as well as
practically inconvenient to have applied it to them, but also because
the Romans, like the other civilized communities of antiquity, had been
so much accustomed to consider private legal rights as necessarily
connected with membership of a city community that it would have seemed
unnatural to apply the private law of one city community to the citizens
of another. It is true that the Romans after a time disabused their
minds of this notion, as indeed they had from a comparatively early
period extended their own private civil rights to many of the cities
which had become their subject allies. Still it continued to influence
them at the time (B.C. 230 to 120) when they were laying out the lines
of their legal policy for the provinces.
Of that legal policy I must speak quite briefly, partly because our
knowledge, though it has been enlarged of late years by the discovery
and collection of a great mass of inscriptions, is still imperfect,
partly because I could not set forth the details without going into a
number of technical points which might perplex readers unacquainted with
the Roman law. It is only the main lines on which the conquerors
proceeded that can be here indicated.
Every province was administered by a governor with a staff of
subordinate officials, the higher ones Roman, and (under the Republic)
remaining in office only so long as did the governor. The governor was
the head of the judicial as well as the military and civil
administration, just as the consuls at Rome originally possessed
judicial as well as military and civil powers, and just as the praetor
at Rome, though usually occupied with judicial work, had also both
military and civil authority. The governor’s court was the proper
tribunal for those persons who in the provinces enjoyed Roman
citizenship, and in it Roman law was applied to such persons in matters
touching their family relations, their rights of inheritance, their
contractual relations with one another, just as English law is applied
to Englishmen in Cyprus or Hong Kong. No special law was needed for
them. As regards the provincials, they lived under their own law,
whatever it might be, subject to one important modification. Every
governor when he entered his province issued an Edict setting forth
certain rules which he proposed to apply during his term of office.
These rules were to be valid only during his term, for his successor
issued a fresh Edict, but in all probability each reproduced nearly all
of what the preceding Edict had contained. Thus the same general rules
remained continuously in force, though they might be modified in detail,
improvements which experience had shown to be necessary being from time
to time introduced[38]. This was the method which the praetors followed
at Rome, so the provincial governors had a precedent for it and knew how
to work it. Now the Edict seems to have contained, besides its
provisions regarding the collection of revenue and civil administration
in general, certain more specifically legal regulations, intended to
indicate the action which the governor’s court would take not only in
disputes arising between Roman citizens, but also in those between
citizens and aliens, and probably also to some extent in those between
aliens themselves. Where the provisions of the Edict did not apply,
aliens would be governed by their own law. In cities municipally
organized, and especially in the more civilized provinces, the local
city courts would doubtless continue to administer, as they had done
before the Romans came, their local civil law; and in the so-called free
cities, which had come into the Empire as allies, these local courts had
for a long time a wide scope for their action. Criminal law, however,
would seem to have fallen within the governor’s jurisdiction, at any
rate in most places and for the graver offences, because criminal law is
the indispensable guarantee for public order and for the repression of
sedition or conspiracy, matters for which the governor was of course
responsible[39]. Thus the governor’s court was not only that which
dispensed justice between Roman citizens, and which dealt with questions
of revenue, but was also the tribunal for cases between citizens and
aliens, and for the graver criminal proceedings. It was apparently also
a court which entertained some kinds of suits between aliens, as for
instance between aliens belonging to different cities, or in districts
where no regular municipal courts existed, and (probably) dealt with
appeals from those courts where they did exist. Moreover where aliens
even of the same city chose to resort to it they could apparently do so.
I speak of courts rather than of law, because it must be remembered that
although we are naturally inclined to think of law as coming first, and
courts being afterwards created to administer law, it is really courts
that come first, and that by their action build up law partly out of
customs observed by the people and partly out of their own notions of
justice. This, which is generally true of all countries, is of course
specially true of countries where law is still imperfectly developed,
and of places where different classes of persons, not governed by the
same legal rules, have to be dealt with.
-----
Footnote 38:
As to this see Essay XIV, vol. ii. p. 274 sqq.
Footnote 39:
In St. Paul’s time, however, the Athenian Areopagus would seem to have
retained its jurisdiction; cf. Acts xvii. 19. The Romans treated
Athens with special consideration.
-----
The Romans brought some experience to the task of creating a judicial
administration in the provinces, where both citizens and aliens had to
be considered, for Rome herself had become, before she began to acquire
territories outside Italy, a place of residence or resort for alien
traders, so that as early as B.C. 247 she created a magistrate whose
special function it became to handle suits between aliens, or in which
one party was an alien. This magistrate built up, on the basis of
mercantile usage, equity, and common sense, a body of rules fit to be
applied between persons whose native law was not the same; and the
method he followed would naturally form a precedent for the courts of
the provincial governors.
Doubtless the chief aim, as well as the recognized duty, of the
governors was to disturb provincial usage as little as they well could.
The temptations to which they were exposed, and to which they often
succumbed, did not lie in the direction of revolutionizing local law in
order to introduce either purely Roman doctrines or any artificial
uniformity[40]. They would have made trouble for themselves had they
attempted this. And why should they attempt it? The ambitious governors
desired military fame. The bad ones wanted money. The better men, such
as Cicero, and in later days Pliny, liked to be fêted by the provincials
and have statues erected to them by grateful cities. No one of these
objects was to be attained by introducing legal reforms which theory
might suggest to a philosophic statesman, but which nobody asked for. It
seems safe to assume from what we know of official human nature
elsewhere, that the Roman officials took the line of least resistance
compatible with the raising of money and the maintenance of order. These
things being secured, they would be content to let other things alone.
-----
Footnote 40:
One of the charges against Verres was that he disregarded all kinds of
law alike. Under him, says Cicero, the Sicilians ‘neque suas leges
neque nostra senatus consulta neque communia iura tenuerunt’; _In
Verr._ i. 4, 13.
-----
Things, however, have a way of moving even when officials may wish to
let them rest. When a new and vigorous influence is brought into a
mixture of races receptive rather than resistent (as happened in Asia
Minor under the Romans), or when a higher culture acts through
government upon a people less advanced but not less naturally gifted (as
happened in Gaul under the Romans), changes must follow in law as well
as in other departments of human action. Here two forces were at work.
One was the increasing number of persons who were Roman citizens, and
therefore lived by the Roman law. The other was the increasing tendency
of the government to pervade and direct the whole public life of the
province. When monarchy became established as the settled form of the
Roman government, provincial administration began to be better
organized, and a regular body of bureaucratic officials presently grew
up. The jurisdiction of the governor’s court extended itself, and was
supplemented in course of time by lower courts administering law
according to the same rules. The law applied to disputes arising between
citizens and non-citizens became more copious and definite. The
provincial Edicts expanded and became well settled as respects the
larger part of their contents. So by degrees the law of the provinces
was imperceptibly Romanized in its general spirit and leading
conceptions, probably also in such particular departments as the
original local law of the particular province had not fully covered. But
the process did not proceed at the same rate in all the provinces, nor
did it result in a uniform legal product, for a good deal of local
customary law remained, and this customary law of course differed in
different provinces. In the Hellenic and Hellenized countries the
pre-existing law was naturally fuller and stronger than in the West; and
it held its ground more effectively than the ruder usages of Gauls or
Spaniards, obtaining moreover a greater respect from the Romans, who
felt their intellectual debt to the Greeks.