of the secular power, and had indeed so much to suffer that one might
have expected its professors to conceive a lasting distrust of that
power in its dealings with religion. This, however, did not happen. So
soon as the secular monarch placed his authority at the disposal of the
Church, by this time organized as a well-knit hierarchy, the Church
welcomed the alliance, and began ere long to invoke the help of carnal
weapons. This was the time when she might in her growing strength have
been tempted to impose her precepts upon the community in the form of
binding rules. But the field was already occupied. She was confronted
and overawed by the majestic fabric of the Roman law. In the East that
law continued to be upheld and applied by the civil authorities. In the
West it suffered severe shocks from the immigration of the barbarian
tribes; but as it was associated with Christian society, the Church
clung to it, and was in no condition for some centuries to try to
emulate or supersede it. When the time of her dominance came in the
eleventh, twelfth, and thirteenth centuries, she did indeed build up a
parallel jurisdiction of her own, with courts into which laymen as well
as clerks were summoned, and she created for these courts that mass of
decrees, almost rivalling the Civil Law in bulk and complexity, which we
call the Canon Law. In the canon law there may seem to be an analogue to
the sacred law of Islam. But the resemblances are fewer than the
differences. The canon law never had any chance of ousting the civil
law, which had already entered on a period of brilliant development and
potent influence at the time when the decrees of earlier Councils and
Popes were beginning to be formed into a systematic digest of rules; and
temporal rulers were generally able to hold their own against Popes and
archbishops. Moreover the canon law, being partly based on or modelled
after the Roman civil law, escaped some of the faults that might have
crept into it had it been erected on a purely theological foundation.
The Church was already so secularized that its law was largely secular
in spirit, and ecclesiastical jurists were at least as much jurists as
they were churchmen. The question propounded in the twelfth century,
whether an archdeacon could obtain salvation, shows that the churchman
who betook himself to legal business was deemed to be quitting the
sphere of piety. Thus law, canon as well as civil law, remained law, and
religion remained religion. The canon law is the law of the Church as an
organized and property-holding society or group of societies. It is the
law for dealing with spiritual offences. It is the law which regulates
certain civil relations which the Church claims to deal with because
they have a religious side. But there is no general absorption of the
civil by the ecclesiastical, no general lowering of the spiritual to the
level of the positive, the external, and the ceremonial. In the
fifteenth and sixteenth centuries the New Learning and the great
ecclesiastical schism removed the danger, if danger there ever was, that
there should descend upon Christianity that glacial period which has so
long held Islam in its gripe.
XIV
METHODS OF LAW-MAKING IN
ROME AND IN ENGLAND
INTRODUCTORY.
The relations borne by the growth and improvement of the law of a
country to that of the constitutional development of that country as a
State are instructive in many aspects—instructive where the lines of
progress run parallel to one another, instructive also where they
diverge. I propose in the following pages to consider them as they
concern the organs and the methods of legislation at Rome and in
England. The political side of this subject is a very large one, indeed
too large to be discussed here, for it would involve a running
commentary upon the general history of these two States. I will only
remark that the inquiry would show us, among other things, the fact that
the progress of Rome from a republic, half oligarchic, half democratic,
to a despotism, did not prevent the phenomena which mark the evolution
of its legislation from bearing many resemblances to the evolution of
legislation in England, where progress has been exactly the reverse,
viz. from a strong (though indeed not absolute) monarchy to what is
virtually a republic half democratic, half plutocratic. The present
inquiry must be confined to the legal side of the matter, viz. to the
Organs and the Methods of Legislation regarded not so much as the
results of political causes, but rather as the sources whence law
springs and the forces whereby it is moulded.
The working of these Organs and Methods may be studied, and their
excellence tested, with regard to both the aspects of law itself, its
Substance and its Form. The merit of a system of Law in point of
Substance is that it be righteous and reasonable, satisfying the moral
sentiments of mankind, giving due scope to their activity, securing
public order, and facilitating social progress. In point of Form, the
merit of Law consists in brevity, simplicity, intelligibility, and
certainty, so that its provisions may be quickly found, easily
comprehended, and promptly applied. Both sets of merits, those of
Substance and those of Form, will depend partly on the nature of the
persons or bodies from whom the Law proceeds, that is the Organs of
Legislation, partly on the Methods employed by those persons or bodies.
But the merits of Substance open up a field of inquiry so wide that it
will be better to direct our present criticism of Organs and Methods
chiefly to those excellences or defects of the law which belong to its
form. I propose to consider these as they worked in Rome, and have
worked down to and in our own time in England, assuming the broad
outlines of the legal history of both States to be already known to the
reader, and dwelling on those points in which a comparison of Rome and
England seems most likely to be profitable.
I. LAW-MAKING AUTHORITIES IN GENERAL.
First let us see what, speaking generally, are the authorities in a
community that make the Law, and How—that is to say, by what modes or
through what organs, they make it.
Broadly speaking, there are in every community two authorities which can
make Law:—the State, _i.e._ the ruling and directing power, whatever it
may be, in which the government of the Community resides, and the
People, that is, the whole body of the community, regarded not as
organized in a State, but as being merely so many persons who have
commercial and social relations with one another. There is, to be sure,
a school of juridical writers which does not admit that the people do or
can thus make Law, insisting that Custom is not Law till the State has
in some way expressly recognized it as such. But this view springs from
a theory so incompatible with the facts in their natural sense, that a
false and unreal colour must be put upon those facts in order to make
them fall in with it. It is unnecessary to pursue a question which is
apt to become merely a verbal one. Let it suffice to say that Law cannot
be always and everywhere the creation of the State, because instances
can be adduced where Law existed in a country before there was any
State; and because the ancient doctrine, both of the Romans and of our
own forefathers—a doctrine never, till recently, disputed—held the
contrary. A great Roman jurist says, with that practical directness
which characterizes his class, ‘Those rules, which the people without
any writing has approved, bind all persons, for what difference does it
make whether the people declare their Will by their votes or by things
and acts[106]?’ This is the universal view of the Romans, and of those
peoples among whom the Roman law, in its modern forms, still prevails.
And such has been also the theory of the English law from the earliest
times.
-----
Footnote 106:
Julian in _Dig._ i. 3. 32.
-----
Now the State has two instruments or organs by which it may legislate.
One is the ruling Person or Body, in whom the constitution expressly
vests legislative power. The other is the official (or officials),
whether purely judicial, or partly judicial and partly executive, to
whom the administration of the law is committed, and whom we call the
Magistrate. This distinction does not refer to the instances in which
legislative authority is, by an act of the Governing Power, specially
delegated to some magisterial person or body. Those instances are really
to be deemed cases of mediate or indirect legislation by the supreme
Government (like the power given by statute to a railway company to make
by-laws). The position of the Magistrate is different, because judicial
administration, and not legislation in the proper sense, is the work he
has been set to do.
Similarly the People have two modes of making Law. In the one they act
directly by observing certain usages till these grow so constant,
definite, and certain that everybody counts upon them, assumes their
existence, and feels sure that they will be recognized and enforced. In
the other they act indirectly through persons who have devoted
themselves to legal study, and who set forth, either in writing or, in
earlier times, by oral discourse, certain doctrines or rules which the
community accepts on the authority of these specially qualified students
and teachers. Such men have not necessarily either any public position
or any direct commission from the State. Their views may rest on nothing
but their own reputation for skill and learning. They do not purport to
make law, but only to state what the law is, and to explain it; but they
represent the finer and more highly trained intellect of the community
at work upon legal subjects, just as its common and everyday
understanding, moved by its sense of practical convenience, is at work
in building up usages. So the maxims and rules these experts produce
come to be, in course of time, recognized as being true law, that is to
say, as binding on all citizens, and applicable to the decision of
disputed questions.
Taking then these four Organs or Sources, we find that one Source—the
People, as makers of Customary Law—is so vague and indeterminate that
one can say little about it as an Organ, though the process by which
Custom makes its way and is felt to be binding is a curious process,
well deserving examination. Two remarks may however be made on it. The
first is this, that it is essential to the validity of a rule claimed to
have been made by Usage that it shall possess a certain extension in
Time and a certain extension in Space. It must have prevailed and been
observed for so long a period that no one can deny its existence. It
must have prevailed over so wide an area, that is to say, have been used
by so many persons, that it cannot be alleged to be a merely local
usage, unknown outside the locality, and therefore not approved by the
tacit consent of the community at large. (The size of the area is of
course in each case proportioned to the size of the whole community. A
custom observed by a population of a few thousand people in a canton of
Switzerland may make the custom law for the canton, though observance by
a similar number would not make a similar custom law for a large country
like Bavaria.) The other remark is that sometimes the observance of a
custom by a particular class of the community, as for instance by
agriculturists or merchants, may suffice to establish the rule for the
community at large[107]. This happens where the custom is by its nature
such that only agriculturists or merchants (as the case may be) would
need to have a custom on the matter at all. Universality of practice by
them is then sufficient to make the custom one valid for the whole
community, which may be taken to have tacitly approved it. Sometimes,
however, the usage of a particular class is deemed to become law by its
being imported as an implied condition into legal transactions,
especially contracts, entered into by members of that class; and this
view has been frequently taken by our English Courts of mercantile
usages, which they have in the first instance enforced rather as
unexpressed elements in a contract than as parts of the general law. It
need hardly be added that the fact that the meaning and extent of a rule
of Customary Law are often uncertain, and give rise to judicial
controversy, does not prevent the rule itself from being valid previous
to its determination in such controversy, for this is exactly analogous
to a disputed question regarding the interpretation of a statute. Though
the meaning of a statute may have been doubtful until determined by the
Courts, the statute was operative from the first, and is rightly applied
to ascertain the validity of rights which accrued before its meaning was
determined.
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Footnote 107:
The ‘Ulster Custom’ is an interesting instance, but it never quite got
the length of becoming law.
-----
We have thus to examine three Sources of Law—the Governing Person or
Body, the Magistrate, and the Jurists or Legal Profession. These are the
three recognized and permanent legislative organs of a community. Every
mode of creating law discoverable in any organized community may be
reduced to one of these, and in most civilized communities all of these
may be found co-existent. Sometimes, however, one or other is either
absent or is present in a quite rudimentary condition. In the East, as
for instance in such countries as Turkey or Persia, there is little that
can be called general legislation. Hatts are no doubt occasionally
promulgated by the Sultan, though they are sometimes not meant to be
observed, and are frequently not in fact observed. So far as new law is
made, it is made by the learned men who study and interpret the Koran
and the vast mass of tradition which has grown up round the Koran. The
existing body of Musulman law has been built up by these doctors of law
during the last twelve centuries, but chiefly in the eighth and ninth
centuries of our era: and a vast body it is. The Kadi or judge is
himself a lawyer, and he might mould the system by his decisions, but
decisions are not reported, and the authority of a Kadi is deemed lower
than that of one of the more learned Muftis or doctors of the law. On
the other hand there are countries, such as Russia for instance, where
the direct promulgation of his will by the Sovereign is the only
recognized form of legislation, the decisions of judges and the opinions
of legal writers enjoying a much lower authority. In other countries, as
in Germany, legal writers are numerous and influential, but the
magistrates, their decisions having been but little reported, have, till
our own time, held for the most part a subordinate place, and played a
comparatively small part in the development of law. This was at one time
the case in France also, where cases decided by the higher courts of law
used to stand little, if at all, above treatises composed by legal
writers of established reputation. Nowadays, however, cases are more
fully reported, and an authority is accorded to decisions scarcely lower
than that which they have long enjoyed in England and America.
At Rome, and also in England, all these three main Sources or Organs
have existed in full force and efficiency, though not in equal
efficiency at different periods in the history of either State. At Rome,
as in England, we begin with customary law. The customary law of the
Quirites is known to and administered by a small privileged class; and
so far as there is any legislation at all, it is the work of members of
this class who carry in their minds and expound and insensibly amplify
the sacred traditional ordinances. Then direct legislation by the people
in their assemblies, and afterwards (though in its germ perhaps almost
concurrently) the law-making action of the magistrate begin to appear.
They go on hand-in-hand for many centuries, seconded by the never
intermitted labours of the jurists, until at last the magistrate’s work
is over, the jurists have lost their impulse or their skill, and the
direct activity of the Sovereign (who is by this time a monarch) becomes
the chief surviving fountain of law. I propose to take these three
sources and compare the way in which they acted in the Roman city and
Empire with their action and development—in many respects parallel, in a
few respects contrasted—in England, whose law has now spread over a
large part of the British Empire.
II. JURISTS AS MAKERS OF LAW.
Let us begin with the Jurists, since they are the first repositories and
interpreters of those customs out of which law grew. One may distinguish
three stages in their attributes and their action at Rome. In the first
stage, during the days before the enactment of the Twelve Tables, and
even after that date down to the third century B.C., they were a small
body of men, all of them patricians, and some of them priests, retaining
in their memory and transmitting to their disciples a number of rules
and maxims, often expressed in some carefully phrased and scrupulously
guarded form of words, such as the _lex horrendi carminis_, which Livy
quotes in his account of the trial of Horatius for killing his
sister[108]. An important place among these rules was held by the
formulas which it was necessary to use in actions or other legal
proceedings, the slightest variation from the established phraseology of
which would be a fatal error. Such knowledge, with the connected
knowledge of the days on which ancient superstition forbade or permitted
legal proceedings to be taken, was in these early times strictly
reserved by its possessors to their own class, as a sacred deposit of
political as well as religious importance.
-----
Footnote 108:
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.
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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_.
-----