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.