the provinces. Did the Roman Assembly either pass statutes for them, as
Parliament has sometimes done for India, or did the Assembly establish
in each province some legislative authority? So far as private law went
Rome did neither during the republican period[41]. The necessity was not
felt, because any alterations made in Roman law proper altered it for
Roman citizens who dwelt in the provinces no less than for those in
Italy, while as to provincial aliens, the Edict of the governor and the
rules which the practice of his courts established were sufficient to
introduce any needed changes. But the Senate issued decrees intended to
operate in the provinces, and when the Emperors began to send
instructions to their provincial governors or to issue declarations of
their will in any other form, these had the force of law, and
constituted a body of legislation, part of which was general, while part
was special to the province for which it was issued.
-----
Footnote 41:
The _Lex Sempronia_ mentioned by Livy, xxxv. 7, seems to be an
exception, due to very special circumstances.
-----
Meantime—and I am now speaking particularly of the three decisively
formative centuries from B.C. 150 to A.D. 150—another process had been
going on even more important. The Roman law itself had been changing its
character, had been developing from a rigid and highly technical system,
archaic in its forms and harsh in its rules, preferring the letter to
the spirit, and insisting on the strict observance of set phrases, into
a liberal and elastic system, pervaded by the principles of equity and
serving the practical convenience of a cultivated and commercial
community. The nature of this process will be found described in other
parts of these volumes[42]. Its result was to permeate the original law
of Rome applicable to citizens only (_ius civile_) with the law which
had been constructed for the sake of dealing with aliens (_ius
gentium_), so that the product was a body of rules fit to be used by any
civilized people, as being grounded in reason and utility, while at the
same time both copious in quantity and refined in quality.
-----
Footnote 42:
See Essay XI, vol. ii., and Essay XIV, vol. ii. p. 291.
-----
This result had been reached about A.D. 150, by which time the laws of
the several provinces had also been largely Romanized. Thus each body of
law—if we may venture for this purpose to speak of provincial law as a
whole—had been drawing nearer to the other. The old law of the city of
Rome had been expanded and improved till it was fit to be applied to the
provinces. The various laws of the various provinces had been constantly
absorbing the law of the city in the enlarged and improved form latterly
given to it. Thus when at last the time for a complete fusion arrived
the differences between the two had been so much reduced that the fusion
took place easily and naturally, with comparatively little disturbance
of the state of things already in existence. One sometimes finds on the
southern side of the Alps two streams running in neighbouring valleys.
One which has issued from a glacier slowly deposits as it flows over a
rocky bed the white mud which it brought from its icy cradle. The other
which rose from clear springs gradually gathers colouring matter as in
its lower course it cuts through softer strata or through alluvium. When
at last they meet, the glacier torrent has become so nearly clear that
the tint of its waters is scarcely distinguishable from that of the
originally bright but now slightly turbid affluent. Thus Roman and
provincial law, starting from different points but pursuing a course in
which their diversities were constantly reduced, would seem to have
become so similar by the end of the second century A.D. that there were
few marked divergences, so far as private civil rights and remedies were
concerned, between the position of citizens and that of aliens.
Here, however, let a difference be noted. The power of assimilation was
more complete in some branches of law than it was in others; and it was
least complete in matters where old standing features of national
character and feeling were present. In the Law of Property and Contract
it had advanced so far as to have become, with some few exceptions[43],
substantially identical. The same may be said of Penal Law and the
system of legal procedure. But in the Law of Family Relations and in
that of Inheritance, a matter closely connected with family relations,
the dissimilarities were still significant; and we shall find this
phenomenon reappearing in the history of English and Native Law in
India.
-----
Footnote 43:
Such as the technical peculiarities of the Roman _stipulatio_, and the
Greek _syngraphe_.
-----
Two influences which I have not yet dwelt upon had been, during the
second century, furthering the assimilation. One was the direct
legislation of the Emperor which, scanty during the first age of the
monarchy, had now become more copious, and most of which was intended to
operate upon citizens and aliens alike. The other was the action of the
Emperor as supreme judicial authority, sometimes in matters brought
directly before him for decision, more frequently as judge of appeals
from inferior tribunals. He had a council called the Consistory which
acted on his behalf, because, especially in the troublous times which
began after the reign of Marcus Aurelius and presaged the ultimate
dissolution of the Empire, the sovereign was seldom able to preside in
person. The judgements of the Consistory, being delivered in the
Emperor’s name as his, and having equal authority with statutes issued
by him, must have done much to make law uniform in all the provinces and
among all classes of subjects[44].
-----
Footnote 44:
These _decreta_ of the Emperor were reckoned among his
_Constitutiones_ (as to which see Essay XIV, vol. ii. p. 308 sqq.).
There does not seem to have been any public record kept and published
of them, but many of them would doubtless become diffused through the
law schools and otherwise. The first regular collections of imperial
constitutions known to us belong to a later time.
-----
III. THE ESTABLISHMENT OF ONE LAW FOR
THE EMPIRE.
Finally, in the beginning of the third century A.D., the decisive step
was taken. The distinction between citizens and aliens vanished by the
grant of full citizenship to all subjects of the Empire, a grant however
which may have been, in the first instance, applied only to organized
communities, and not also to the backward sections of the rural
population, in Corsica, for instance, or in some of the Alpine valleys.
Our information as to the era to which this famous Edict of Caracalla’s
belongs is lamentably scanty. Gaius, who is the best authority for the
middle period of the law, lived fifty or sixty years earlier. The
compilers of Justinian’s _Digest_, which is the chief source of our
knowledge for the law as a whole, lived three hundred years later, when
the old distinctions between the legal rights of citizens and those of
aliens had become mere matters of antiquarian curiosity. These compilers
therefore modified the passages of the older jurists which they inserted
in the _Digest_ so as to make them suit their own more recent time. As
practical men they were right, but they have lessened the historical
value of these fragments of the older jurists, just as the modern
restorer of a church spoils it for the purposes of architectural
history, when he alters it to suit his own ideas of beauty or
convenience. Still it may fairly be assumed that when Caracalla’s grant
of citizenship was made the bulk of the people, or at least of the town
dwellers, had already obtained either a complete or an incomplete
citizenship in the more advanced provinces, and that those who had not
were at any rate enjoying under the provincial Edicts most of the civil
rights that had previously been confined to citizens, such for instance
as the use of the so-called Praetorian Will with its seven seals.
How far the pre-existing local law of different provinces or districts
was superseded at one stroke by this extension of citizenship, or in
other words, what direct and immediate change was effected in the modes
of jurisdiction and in the personal relations of private persons, is a
question which we have not the means of answering. Apparently many
difficulties arose which further legislation, not always consistent, was
required to deal with[45]. One would naturally suppose that where Roman
rules differed materially from those which a provincial community had
followed, the latter could not have been suddenly substituted for the
former.
-----
Footnote 45:
See upon this subject the learned and acute treatise (by which I have
been much aided) of Dr. L. Mitteis, _Reichsrecht und Volksrecht in den
östlichen Provinzen des Römischen Kaiserreichs_, chap. vi.
-----
A point, for instance, about which we should like to be better informed
is whether the Roman rules which gave to the father his wide power over
his children and their children were forthwith extended to provincial
families. The Romans themselves looked upon this paternal power as an
institution peculiar to themselves. To us moderns, and especially to
Englishmen and Americans, it seems so oppressive that we cannot but
suppose it was different in practice from what it looks on paper. And
although it had lost some of its old severity by the time of the
Antonines, one would think that communities which had not grown up under
it could hardly receive it with pleasure.
From the time of Caracalla (A.D. 211-217) down till the death of
Theodosius the Great (A.D. 395) the Empire had but one law. There was
doubtless a certain amount of special legislation for particular
provinces, and a good deal of customary law peculiar to certain
provinces or parts of them. Although before the time of Justinian it
would seem that every Roman subject, except the half-barbarous peoples
on the frontiers, such as the Soanes and Abkhasians of the Caucasus or
the Ethiopic tribes of Nubia, and except a very small class of freedmen,
was in the enjoyment of Roman citizenship, with private rights
substantially the same, yet it is clear that in the East some Roman
principles and maxims were never fully comprehended by the mass of the
inhabitants and their legal advisers of the humbler sort, while other
principles did not succeed in displacing altogether the rules to which
the people were attached. We have evidence in recently recovered
fragments of an apparently widely used law-book, Syriac and Armenian
copies of which remain, that this was the case in the Eastern provinces,
and no doubt it was so in others also. In Egypt, for instance, it may be
gathered from the fragments of papyri which are now being published,
that the old native customs, overlaid or re-moulded to some extent by
Greek law, held their ground even down to the sixth or seventh
century[46]. Still, after making all allowance for these provincial
variations, philosophic jurisprudence and a levelling despotism had done
their work, and given to the civilized world, for the first and last
time in its history, one harmonious body of legal rules.
-----
Footnote 46:
This is carefully worked out both as to Syria and to Egypt by Dr.
Mitteis, _op. cit._ He thinks (pp. 30-33) that the law of the Syrian
book, where it departs from pure Roman law as we find it in the
_Corpus Iuris_, is mainly of Greek origin, though with traces of
Eastern custom. He also suggests that the opposition, undoubtedly
strong, of the Eastern Monophysites to the Orthodox Emperors at
Constantinople may have contributed to make the Easterns cling the
closer to their own customary law. The Syrian book belongs to the
fifth century A.D., and is therefore earlier than Justinian (Bruns und
Sachau, _Syrisch-römisches Rechtsbuch aus dem fünften Jahrhundert_).
-----
The causes which enabled the Romans to achieve this result were, broadly
speaking, the five following:—
(1) There was no pre-existing body of law deeply rooted and strong
enough to offer resistance to the spread of Roman law. Where any highly
developed system of written rules or customs existed, it existed only in
cities, such as those of the Greek or Graecized provinces on both sides
of the Aegean. The large countries, Pontus, for instance, or Macedonia
or Gaul, were in a legal sense unorganized or backward. Thus the Romans
had, if not a blank sheet to write on, yet no great difficulty in
overspreading or dealing freely with what they found.
(2) There were no forms of faith which had so interlaced religious
feelings and traditions with the legal notions and customs of the people
as to give those notions and customs a tenacious grip on men’s
affection. Except among the Jews, and to some extent among the
Egyptians, Rome had no religious force to overcome such as Islam and
Hinduism present in India.
(3) The grant of Roman citizenship to a community or an individual was a
privilege highly valued, because it meant a rise in social status and
protection against arbitrary treatment by officials. Hence even those
who might have liked their own law better were glad to part with it for
the sake of the immunities of a Roman citizen.
(4) The Roman governor and the Roman officials in general had an
administrative discretion wider than officials enjoy under most modern
governments, and certainly wider than either a British or an United
States legislature would delegate to any person. Hence Roman governors
could by their Edicts and their judicial action mould the law and give
it a shape suitable to the needs of their province with a freedom of
handling which facilitated the passage from local law or custom to the
jurisprudence of the Empire generally.
(5) Roman law itself, _i.e._ the law of the city, went on expanding and
changing, ridding itself of its purely national and technical
peculiarities, till it became fit to be the law of the whole world. This
process kept step with, and was the natural expression of, the political
and social assimilation of Rome to the provinces and of the provinces to
Rome.
At the death of Theodosius the Great the Roman Empire was finally
divided into an Eastern and a Western half; so that thenceforward there
were two legislative authorities. For the sake of keeping the law as
uniform as possible, arrangements were made for the transmission by each
Emperor to the other of such ordinances as he might issue, in order that
these might be, if approved, issued for the other half of the Empire.
These arrangements, however, were not fully carried out: and before long
the Western Empire drifted into so rough a sea that legislation
practically stopped. The great Codex of Theodosius the Second (a
collection of imperial enactments published in A.D. 438) was however
promulgated in the Western as well as in the Eastern part of the Empire,
whereas the later Codex and Digest of Justinian, published nearly a
century later, was enacted only for the East, though presently extended
(by re-conquest) to Italy, Sicily, and Africa. Parts of the Theodosian
Codex were embodied in the manuals of law made for the use of their
Roman subjects by some of the barbarian kings. It continued to be
recognized in the Western provinces after the extinction of the imperial
line in the West in A.D. 476: and was indeed, along with the manuals
aforesaid, the principal source whence during a long period the Roman
population drew their law in the provinces out of which the kingdoms of
the Franks, Burgundians, and Visigoths were formed.
Then came the torpor of the Dark Ages.
IV. THE EXTENSION OF ROMAN LAW AFTER THE
FALL OF THE WESTERN EMPIRE.
Upon the later history of the Roman law and its diffusion through the
modern world I can but briefly touch, for I should be led far away from
the special topic here considered. The process of extension went on in
some slight measure by conquest, but mainly by peaceful means, the less
advanced peoples, who had no regular legal system of their own, being
gradually influenced by and learning from their more civilized
neighbours to whom the Roman system had descended. The light of legal
knowledge radiated forth from two centres, from Constantinople over the
Balkanic and Euxine countries between the tenth and the fifteenth
centuries, from Italy over the lands that lay north and west of her from
the twelfth to the sixteenth century. Thereafter it is Germany, Holland,
and France that have chiefly propagated the imperial law, Germany by her
universities and writers, France and Holland both through their jurists
and as colonizing powers.
In the history of the mediaeval and modern part of the process of
extension five points or stages of especial import may be noted.
The first is the revival of legal study which began in Italy towards the
end of the eleventh century A.D., and the principal agent in which was
the school of Bologna, famous for many generations thereafter. From that
date onward the books of Justinian, which had before that time been
superseded in the Eastern Empire, were lectured and commented on in the
universities of Italy, France, Spain, England, Germany, and have
continued to be so till our own day. They formed, except in England
where from the time of Henry the Third onwards they had a powerful and
at last a victorious rival in the Common Law, the basis of all legal
training and knowledge.
The second is the creation of that vast mass of rules for the guidance
of ecclesiastical matters and courts—courts whose jurisdiction was in
the Middle Ages far wider than it is now—which we call the Canon Law.
These rules, drawn from the canons of Councils and decrees of Popes,
began to be systematized during the twelfth century, and were first
consolidated into an ordered body by Pope Gregory the Ninth in the
middle of the thirteenth[47]. They were so largely based on the Roman
law that we may describe them as being substantially a development of
it, partly on a new side, partly in a new spirit, and though they
competed with the civil law of the temporal courts, they also extended
the intellectual influence of that law.
-----
Footnote 47:
Other parts were added later.
-----
The third is the acceptance of the Roman law as being of binding
authority in countries which had not previously owned it, and
particularly in Germany and Scotland. It was received in Germany because
the German king (after the time of Otto the Great) was deemed to be also
Roman Emperor, the legitimate successor of the far-off assemblies and
magistrates and Emperors of old Rome; and its diffusion was aided by the
fact that German lawyers had mostly received their legal training at
Italian universities. It came in gradually as subsidiary to Germanic
customs, but the judges, trained in Italy in the Roman system, required
the customs to be proved, and so by degrees Roman doctrines supplanted
them, though less in the Saxon districts, where a native law-book, the
_Sachsenspiegel_, had already established its influence. The acceptance
nowhere went so far as to supersede the whole customary law of Germany,
whose land-rights, for instance, retained their feudal character. The
formal declaration of the general validity of the _Corpus Iuris_ in
Germany is usually assigned to the foundation by the Emperor Maximilian
I, in 1495, of the Imperial Court of Justice (Reichskammergericht). As
Holland was then still a part of the Germanic Empire, as well as of the
Burgundian inheritance, it was the law of Holland also, and so has
become the law of Java, of Celebes, and of South Africa. In Scotland it
was adopted at the foundation of the Court of Session, on the model of
the Parlement of Paris, by King James the Fifth. Political antagonism to
England and political attraction to France, together with the influence
of the Canonists, naturally determined the King and the Court to follow
the system which prevailed on the European continent.
The fourth stage is that of codification. In many parts of Gaul, though
less in Provence and Languedoc, the Roman law had gone back into that
shape of a body of customs from which it had emerged a thousand years
before; and in Northern and Middle Gaul some customs, especially in
matters relating to land, were not Roman. At last, under Lewis the
Fourteenth, a codifying process set in. Comprehensive Ordinances, each
covering a branch of law, began to be issued from 1667 down to 1747.
These operated throughout France, and, being founded on Roman
principles, further advanced the work, already prosecuted by the
jurists, of Romanizing the customary law of Northern France. That of
Southern France (the _pays du droit écrit_) had been more specifically
Roman, for the South had been less affected by Frankish conquest and
settlement. The five Codes promulgated by Napoleon followed in 1803 to
1810[48]. Others reproducing them with more or less divergence have been
enacted in other Romance countries.
-----
Footnote 48:
Among the States in which the French Code has been taken as a model
are Belgium, Italy, Spain, Portugal, Mexico, and Chili. See an article
by Mr. E. Schuster in the _Law Quarterly Review_ for January, 1896.
-----
In Prussia, Frederick the Second directed the preparation of a Code
which became law after his death, in 1794. From 1848 onwards parts of
the law of Germany (which differed in different parts of the country)
began to be codified, being at first enacted by the several States, each
for itself, latterly by the legislature of the new Empire. Finally,
after twenty-two years of labour, a new Code for the whole German Empire
was settled, was passed by the Chambers, and came into force on the
first of January, 1900. It does not, however, altogether supersede
pre-existing local law. This Code, far from being pure Roman law,
embodies many rules due to mediaeval custom (especially custom relating
to land-rights) modernized to suit modern conditions, and also a great
deal of post-mediaeval legislation[49]. Some German jurists complain
that it is too Teutonic; others that it is not Teutonic enough. One may
perhaps conclude from these opposite criticisms that the codifiers have
made a judiciously impartial use of both Germanic and Roman materials.
-----
Footnote 49:
An interesting sketch of the ‘reception’ of Roman law in Germany (by
Dr. Erwin Grüber) may be found in the Introduction to Mr. Ledlie’s
translation of Sohm’s _Institutionen_ (1st edition).
-----
Speaking broadly, it may be said that the groundwork of both the French
and the German Codes—that is to say their main lines and their
fundamental legal conceptions—is Roman. Just as the character and genius
of a language are determined by its grammar, irrespective of the number
of foreign words it may have picked up, so Roman law remains Roman
despite the accretion of the new elements which the needs of modern
civilization have required it to accept.
The fifth stage is the transplantation of Roman law in its modern forms
to new countries. The Spaniards and Portuguese, the French, the Dutch,
and the Germans have carried their respective systems of law with them
into the territories they have conquered and the colonies they have
founded; and the law has often remained unchanged even when the
territory or the colony has passed to new rulers. For law is a tenacious
plant, even harder to extirpate than is language; and new rulers have
generally had the sense to perceive that they had less to gain by
substituting their own law for that which they found than they had to
lose by irritating their new subjects. Thus, Roman-French law survives
in Quebec (except in commercial matters) and in Louisiana, Roman-Dutch
law in Guiana and South Africa.