beginnings of the Praetor’s action, or the details of its working, or
the changes which must unquestionably have passed upon it during the
three centuries and a half when its importance stood highest, say from
the end of the First Punic War to the time of the Emperor Hadrian (B.C.
241 to 117 A.D.). Even of the Edict itself, in its latest and most
complete form, we have only fragments, and do not know by what stages it
was brought to the perfection which led to its being finally settled in
a form never thenceforward altered. This took place under Hadrian, when
Salvius Julianus, a famous jurist who was Praetor at the time, gave it
the shape in which it became permanent, an _Edictum Perpetuum_ in a new
sense; it was then enacted by a _Senatus Consultum_, and in the form so
enacted it was thereafter quoted and applied. Apparently, however, the
effect of its enactment was not to make it a part of the general
statutory law, but only to determine the form in which it was thereafter
put forth by the magistrates. After that time such Edicts as were issued
were special, containing declarations of the imperial will, usually
addressed to particular circumstances. They were no longer Edicts in the
old sense, but mere imperial constitutions.
It need hardly be said that under the Empire the action of the Praetor,
like that of all other magistrates, had been liable to be directed or
supervised by the Sovereign or his legal advisers. An interesting
illustration of that supervision is worth mentioning, because it also
brings into relief the fact that other magistrates, as well as the
Praetor and Aediles, enjoyed the power of creating law by their action,
which may be called either administrative or judicial, seeing that it
united the two characters. Before the time of Augustus there had been no
such thing among the Romans as the giving of an inheritance, or a
legacy, by means of a Trust, _i.e._ by imposing on the honour and good
faith of the person to whom property was left a legal obligation to hand
it, or a part of it, over to some one else as the real beneficiary. The
practice of asking such a person to carry out the testator’s wish had
existed, but he could disregard the wish if he pleased. Augustus,
however, on two occasions directed the Consuls (not the Praetor) to
enforce such a request by their authority, thereby turning the moral
into a legal obligation; and at the same time recognized an informal
letter or writing (_codicilli_) as sufficient, where confirmed by a
will, to impose a binding obligation on the heir. We are told that, in
the latter case, having himself on one occasion performed what a
testator had asked him, by way of trust, to do, he summoned a meeting of
eminent jurists to advise him, and accepted the advice of Trebatius that
the obligation should be held valid. These instances became the
foundation of the extremely important changes which made the validity of
Trusts, and that of _codicilli_, thenceforward a well-established legal
doctrine[120]. As the origin of Roman trust inheritances is due to the
action of the magistrates, so English trusts owe their legal force to
the Chancellor; and through the operation of the practice of creating
them, coupled with the Statute of Uses (27 Henry VIII, c. 10), there
grew up the modern system of conveyancing.
-----
Footnote 120:
‘Primus divus Augustus semel iterumque gratia personarum motus, vel
quia per ipsius salutem rogatus quis diceretur aut ob insignem
quorundam perfidiam, iussit consulibus auctoritatem suam interponere,
quod quia iustum videbatur et populare erat, paulatim conversum est in
adsiduam iurisdictionem’ (_Inst._ ii. 23. 1). See also _Inst._ ii. 25.
-----
The merits of our English Case Law system are very great. It is an
abiding honour to our lawyers and judges to have worked it out with a
completeness and success unknown to any other country. They have
accumulated in the Reports an unequalled treasure of instances,
conjunctions of circumstances raising points of law far more numerous
than the most active intellects could have imagined. These points have
been argued with the keenness which personal interest supplies, and
decided under that sense of responsibility which the Judge feels when he
knows not only that his judgement is to determine the pecuniary claims
or social position of suitors, but also that it is to constitute a rule
which will be canvassed by the bench and the bar, and find its place in
volumes that will be studied long after he has quitted this mortal
scene. There is therefore a practicality about English Case Law, a firm
grasp of facts and reality, as well as a richness and variety, which
cannot be looked for in legal treatises composed even by the ablest and
most conscientious private persons, who, writing in their studies, have
not been enlightened by forensic discussion nor felt themselves
surrounded by the halo of official dignity. If the treatises of the
great Roman jurists do to a large extent possess these same merits, it
is because they too were, in a measure, public officers, and because
much of the law they contain arose out of concrete cases[121].
-----
Footnote 121:
Not that all the cases we find in the _Digest_ are concrete cases, for
a good many seem to have been imagined for the sake of illustrating
the applications of a principle. Cf. the illustrations in Macaulay’s
Indian Penal Code.
-----
The characteristic defects of Case Law which must be set against these
merits are two. There is, first of all, its frequent uncertainty. As has
been remarked already, one must always assume a certain percentage of
ill-decided cases which it is hard to get rid of. And it may often
happen that a particular point, which specially needs to be determined
in the interests of legal science, remains for years, or even centuries,
unsettled, because it is never brought before the Courts in a neat form
which raises just the issue that wants settling. Sometimes it hardly
matters which way the decision goes: the important thing is to have a
decision, yet there is no means provided of getting one, unless by
invoking the legislature, which is usually too much occupied with
political controversies or administrative problems to care for settling
such a point. And secondly there is the utterly unsystematic character
from which Case Law necessarily suffers, and which it necessarily
imparts to the whole law of the country. This defect is too familiar
from everyday experience to need any illustration. It is the capital
defect, one might say almost the only defect, of the law of England; and
people have so long talked in vain about remedying it by means of a
Code, that they have at last grown tired of the subject, and seem to be
settling down into despair. I refer to it for the sake of pointing out
how the institution of the Roman Praetor met a similar danger. The
Romans had, to be sure, no great turn for scientific arrangement—their
efforts at codification and the structure of their legal treatises show
that—but the Praetor’s Edict had the immense advantage of presenting all
the gist and pith of the newer law in a compact form, clearly and
concisely set forth. The Edict thus became a centre round which the
jurists could work, a point of departure for all further legislation, a
main line of road running through the network of lanes, courts, and
alleys that had been built up by a multitude of statutes and treatises.
It was capable of being constantly amended and extended so as to take in
all changes in the law, while yet retaining its own character; and it
gave a unity, a cohesion, a philosophical self-consistency to the Roman
law which it must otherwise have wanted even more than does our own. A
German writer has somewhere remarked, in commenting on the crude and
fragmentary character of the Roman Criminal Law, with whose development
the Praetor had comparatively little to do, that the faults of that
branch of legal science show how absurd it is to ascribe the merits of
Roman jurisprudence to any special gift for legislation bestowed by
Heaven on the Roman people. The excellence of their private civil law is
(he observes) due simply to the fact that they had the good sense, or
perhaps the good luck, to have provided in the Praetorship an office
specially charged with the duty of constantly amending the law so as to
bring it in accord with the growing civilization and enlarging ideas of
the people. There is much truth in this. The Romans, however, did not
invent their Praetor with any such conscious purpose. Their merit was
that, when they saw him occupied in developing the law, they gave him
free scope, and supported him in his beneficent work. He is a unique
figure among the law-making organs of the nations. Since he is the
choice of the people, he is able to do things which the minister of an
absolute monarch might prudently shrink from doing; and the people
permit him to retain his functions, even in days when the habit of
directly legislating had so much increased that it might have been
supposed that legislation would restrict or supersede his action. No
modern republic would vest such power in an official, nor would any
modern monarch be permitted by public opinion so to vest it.
Nevertheless, though he belongs to a world which cannot return, the
Praetor’s career may suggest to us that every civilized nation ought, in
some way or other, to provide an organ representing its legal
intelligence which shall mould and supervise the gradual and symmetrical
development of its law. It may be suggested that all modern States do
provide such an organ in their legislatures, whose business is largely,
in some instances almost entirely, that of making law, and which
presumably contain the most capable men whom the nation possesses. When
we have considered the conditions under which legislatures work, as I
propose now to do, we shall be better able to judge how far they fulfil
the function which the Praetor discharged at Rome.
VI. DIRECT LEGISLATION AT ROME.
A. _The Popular Assembly._
We have now compared the organs and the methods of legislation which
existed in the Roman Republic and Empire with those of England, so far
as relates to the action of the jurists, magistrates, and judges. Taking
first the Roman jurisconsults and authors of legal treatises, it was
suggested that their English analogues were rather to be found not so
much in text-writers as in the judges, the result of whose labours is
preserved in the vast storehouse of the Reports; while in considering
the action of the Roman Magistrates, especially of the Praetor, in the
creation of law, stress was laid on the advantages which the peculiar
position of this great head of the whole judicial system presented for
the gradual and harmonious development of legal rules, an advantage
which the disconnexion of the Chancellor from the Common Law Courts did
not permit in England. This led to an examination of the English method
of developing and amending of the law by the decisions of the Courts, a
method which, if it loses something in point of symmetry, has the
advantage of providing an unrivalled abundance of materials for the
determination of every question that can arise, and of subjecting each
disputable point to the test of close and acute scrutiny.
We may now go on to examine another mode of creating law, that namely
which proceeds immediately from the supreme power in the State, and
which may, as contrasted with the indirect creation of law by jurists,
or magistrates, be called Direct Legislation.
The organ of such direct legislation is the supreme authority in the
State, whether such authority be a Person or a Body, whether such body
be the council of an oligarchy or a popular assembly, and whether such
popular assembly be primary or representative.
The method whereby Direct Legislation is enacted is the public
proclamation (usually, and now invariably, but of course not
necessarily) in writing by the Supreme Authority, of its will as
intended to bind the citizens and guide their action. And the result is
what we call Statute Law as opposed to Common Law. The distinction is a
familiar one to both nations. The later Romans contrast _Ius_ and
_Lex_[122]: we contrast Common Law and Statute.
-----
Footnote 122:
By the time of Justinian the distinction had come to be between _Ius_
as the old Law, including republican statutes, Senatus consulta, the
Edicts of magistrates and the writings of the jurists, and the new
Law, which consisted of imperial ordinances, and was called sometimes
_Ius Novum_, sometimes _Leges_.
-----
Let us first inquire what were, at different periods in the long annals
of the Roman State, its various organs of direct legislation, and how
each of them worked. It is of course only in outline that so large a
subject can be treated.
The Roman State lasted 2,206 years—from the unauthenticated ‘founding of
the city’ (for which I assume the traditional date of B.C. 753) down to
the well authenticated capture of Constantinople by the Turks in A.D.
1453. Some would carry it down to 1806, and thus give it a life of 2,559
years, but the feudal Romano-Germanic Empire is such a totally different
thing in substance from the Empire at Rome or at Constantinople, that
although its sovereigns often claimed to legislate after the manner of
Constantine and Justinian, nothing would be gained by bringing it and
them within the scope of our inquiry. Now during this long period of two
and twenty centuries, from Romulus to Constantine the Sixteenth, three
such organs were successively developed. The first was the popular
assembly of the citizens; the second, the administrative council of
magnates and ex-officials; the third, the autocratic monarch. The first
co-existed for a certain time with the second, the second with the
third. The rights of the first and the second seem to have never been
formally extinguished, even when the third had become in practice the
sole source of law. Still we may, with substantial accuracy, limit the
action of the first to the republican period, that of the second (so far
as properly legislative) to the earlier two centuries of the imperial
monarchy, while in later ages the third alone need be regarded.
As I am not drawing a historical sketch, but merely attempting to point
out how each organ acted in producing law, I shall not stop to discuss
any constitutional questions as to the rights or powers at various times
of these organs respectively, but shall assume each to have been in its
own day duly recognized as competent to legislate. That is the view
presented to us by Gaius (writing in the second century A.D.) and in the
_Digest_ and _Institutes_ of Justinian enacted in the sixth century A.D.
The Emperor says, ‘The written law consists of statutes, resolutions of
the _plebs_, decrees of the Senate, the ordinances of emperors, the
edicts of magistrates, the answers of jurisconsults[123].’ We have
already considered the two latter, and have now the four former kinds of
legislation to examine, all of which may be called, in a wide sense of
the term, Statutes, _i.e._ declarations of the will of the State
formally promulgated as law.
-----
Footnote 123:
‘Scriptum ius est lex, plebiscita, senatus consulta, principum
placita, magistratuum edicta, responsa prudentium. Lex est quod
populus Romanus senatore magistratu interrogante, veluti consule,
constituebat: plebiscitum est quod plebs plebeio magistratu
interrogante, veluti tribuno, constituebat’ (_Inst._ i. 2. 3, 4).
-----
The legislative power of the Roman people was exercised, during the
Republic, through three assemblies, those of the curies (this soon lost
all practical importance), the centuries, and the tribes. Passing by the
interesting and difficult questions as to the composition of these
bodies, their respective functions, and the time when each may be said
to have acquired or lost its authority, we may remark several features
which they had in common, and which impressed a peculiar character on
the laws that emanated from them. The differences between them do not
affect the points to which I am going to call attention. All these
_comitia_ (literally, meetings) are Primary assemblies, that is to say,
they are not representative bodies, but consist of the whole body of
citizens, just like a Homeric ἀγορά, an Athenian or Syracusan ἐκκλησία,
Frankish _mallum_, an Old English Gemot, an English seventeenth-century
Vestry, a New England Town Meeting, an English Parish Meeting under the
Local Government Act of 1894, an Icelandic Thing, a Basuto Pitso. The
Roman assemblies are, therefore, large bodies consisting of thousands,
often many thousands, of persons, and fluctuating bodies, in which not
always the same persons will be present, and in which those who live
near the place of meeting will tend to preponderate. Further, they
are—and this is a remarkable feature of the Roman system—bodies composed
of minor bodies, and determining their decision by a system of double
voting. Each individual votes in the group to which he belongs, _curia_,
_centuria_, or _tribus_, as the case may be; and it is by the majority
of curies, centuries, or tribes that the decision of the assembly as a
whole is given, the collective voice of each of these groups being
reckoned as one vote, and a small group having as much weight as a large
one. Thus there may be a majority of group votes for a proposition while
the majority of votes of individuals is against it. This mode of voting,
unfamiliar to modern political constitutions, survives in the Rectorial
elections of two (Glasgow and Aberdeen) of the four Scottish
Universities, where the students vote by ‘nations’; and it has sometimes
happened that a person is on this method chosen to be Lord Rector
against whom a majority of the votes given by the individual electors
has been recorded[124]. So under the Constitution of the United States,
when no candidate for President has received a majority of the votes
given, the House of Representatives chooses one of the five candidates
who has received most votes, and in doing so the House votes by States,
_i.e._ the majority of the Representatives from each State determine the
vote of that State, and the majority of States (not of individual
Representatives) prevails. Thirdly, these assemblies can be convoked and
presided over only by a Magistrate, and their action may be stopped by
another Magistrate. Fourthly, no discussion takes place in them. They
meet only to vote on propositions submitted by the presiding Magistrate,
who alone speaks, and who speaks only to put the question. Fifthly, they
vote once only, and that vote is final and supreme, requiring no assent
of or confirmation by any other body, but operating directly to create a
rule binding all members or subjects of the State.
-----
Footnote 124:
See 52 & 53 Vict. c. 55, § 14, subs. 4.
-----
Such a machinery seems almost as if calculated either to check
legislation by throwing obstacles in its way, or else to make
legislation hasty and imprudent. The passing of a long measure or a
complex measure might be thought scarcely possible under it; while at
the same time it secures no opportunities for criticism and revision,
and for the reconsideration at a future stage of decisions too hastily
taken when the measure was first submitted. Thus there would appear to
be a double danger involved in such a system, the danger of not moving
at all, and the danger, when the people do move, of going too fast and
too far. It must be remembered, however, that not very much direct
legislation was needed. The improvement of ordinary private law was for
the most part left to the Praetor and the jurists, while one great
branch of modern legislation lay almost untouched during the Roman
Republic, that of the regulation of powers and functions of
administrative departments. There was comparatively little general
administrative law in our modern sense in Italy, because in Rome the
magistrates and Senate had a pretty wide discretion, and through the
rest of Italy the local communities managed their own affairs. So too in
the provinces administration was left either to the local municipalities
or to the Roman governors, proconsuls, or propraetors.
Even if the method of legislating which these assemblies followed be
deemed ill fitted to secure that the merits of any change in the
substance of the law should be carefully weighed, it need not have been
equally deficient in making it excellent in point of form, _i.e._ clear,
consistent, symmetrical. In this respect the absence of means for
discussion and amendment may have worked for good. Statutes enacted in
the form in which they have been originally proposed are more likely to
be plain and simple than those which have been cut about, pared down,
and added to by the action of some revising Committee or of a Second
Chamber, probably dissimilar in opinion from the First Chamber, possibly
disposed to differ for the sake of differing. The volume of direct
legislation may, under a system like that of Rome, be comparatively
small. But the fewer changes in the law are made by statute so much the
better for the harmonious development and inner consistency of the whole
body of law, which suffers far less often from permitting the survival
of an occasional anomaly or absurdity than from frequent tinkering, that
is to say, from the introduction of exceptions to general rules, or the
multiplying of provisions for special cases. So far, therefore, as
quantity is concerned, the small amount of legislative work which the
Roman _comitia_ turned out was a matter for satisfaction, not for
regret.
As respects the quality of that work, the character of the Assembly
produced some remarkable consequences. That it might be understood and
approved by the ordinary citizens, the bill proposed must be
comparatively short, terse, clear. In many cases it would have been
previously discussed at public meetings, which the magistrate could
summon; but those who would attend the meetings might be but a small
proportion of those called upon to vote in the _comitia_. As it could
not be amended by the Assembly, and would reflect credit or discredit on
the name of the proposing Magistrate who was responsible for it, it must
be prepared with scrupulous care. As it would become operative
immediately on its being approved by the single vote of the Assembly,
with no opportunity of correcting it at any later stage or in any other
legislative body, an error would be serious to the community, and
specially damaging to the proposer. Moreover, as it could not be amended
in the Assembly, it escaped all risk of having its drafting spoiled and
of losing what original merits of breadth, lucidity, logical
arrangement, and conciseness of expression it might possess. No one
could move to add or to omit a clause. No large principle could be
qualified by the insertion of limiting words. No savings for particular
cases could be suggested, and possibly accepted in order to buy off
opposition. ‘Yes’ or ‘No’ to the whole bill—these were the only
alternatives. And the simpler the bill, so much more probable the ‘Yes’;
whereas in assemblies with power to amend, a ‘Yes’ has to be purchased
by compromises and concessions, which, whatever effect they may have on
the substance of a measure, destroy the elegance of its form. The
statutes passed by the Roman people had, therefore, owing to these
causes, three great merits. There were few of them. They were brief.
They were clear. We possess fragments, in some cases pretty large
fragments, of a good many; and in all the drafting is excellent. The
sharp, stern, almost grim conciseness and precision of the Twelve Tables
seem to have been always present to the mind of the Roman draftsman as
the model he ought to follow.