progress of Bills in the House of Commons are so ample, not to say
profuse, that the practice has grown up of drafting Bills, not in the
form most scientifically appropriate, but in that which makes it easiest
for them to be carried through under the fire of debate. To lay down
those broad, clear, simple propositions of principle which conduce to
the intelligibility and symmetry of the law is to invite opposition, and
to make the process of opposing easier for those who desire to resist,
but have not the technical knowledge needed for a minute discussion. To
bury a principle out of sight under a mass of details; to avoid the
declaration of a principle by enacting a number of small provisions,
which cover most of the practically important points, yet do not amount
to the declaration of a new general rule; to insert a number of
exceptions, not in themselves desirable, but calculated to avert
threatened hostility; to hide a substantial change under the cloak of a
reference to some previous Act which is to be incorporated with the Act
proposed to be passed; to deal with some parts of a subject in one year,
and postpone some other parts to be dealt with in another measure next
year, while leaving yet other parts to the chances of the future, though
all ought to have been included in one enactment;—these are expedients
which are repellent to the scientific conscience of the draftsman, but
which are forced on him by the wishes of the Minister who is in charge
of the Bill and who foresees both the objections that will be taken to
it and the opportunities for obstructing it which parliamentary
procedure affords. Yet the Minister may well plead that, with the
limited time at his disposal, these expedients are essential to the
passing of his Bill. Any one can see what complication, what obscurity,
what uncertainty in the law must needs result from this way of amending
it.
Thus it has come about that our English statute law is more bulky and
even more unscientific in its form (whatever the excellence of its
matter) than was the statute law of the Roman Empire when Theodosius II,
and afterwards Justinian, set themselves to call order out of chaos. No
Theodosius II, no Justinian, need be looked for in England. Yet much
might be done to reduce the existing statutes into a more manageable
mass, and something to improve the form in which they come from the
hands of the legislature. The former work, previously in the hands of
the Statute Law Commission, has since that body came to an end been
entrusted to another body called the Statute Law Committee, which is
conducting a general revision of the statutes. It has issued a Revised
Edition coming down to A. D. 1886, and under its auspices a number of
useful Consolidation Acts have been passed, whereby the Statute Law, and
in a few instances the Common Law also, relating to particular
departments has been brought together and enacted as an orderly whole.
The more difficult enterprise of providing better methods for turning
out new law in a clear, concise, and scientifically ordered form, is
rarely discussed, even by lawyers, and seems to excite no public
interest. It raises many difficult questions which this is not the place
to treat of, so I will be content with observing that the remedy for the
present defects of British statutes which seems least inconsistent with
our parliamentary methods, would be to refer each Act, after it had
passed both Houses, but before it received the royal assent, to a small
committee consisting of skilled draftsmen and of skilled members of both
Houses, who should revise the form and language of the Act in such wise
as, without in the least affecting its substance, to improve its
arrangement and its phraseology, the Act being formally submitted once
more to both Houses before the royal assent was given, so as to prevent
any suspicion that a change of substance had been made. It is, however,
unlikely that Parliament will consent to any proposal of this nature;
and even if some such expedient were adopted it would, at least in some
cases, fail to remove the faults above described, because they are
necessarily incident to legislation by large assemblies on matters which
excite popular feeling and involve political controversy.
X. SOME REFLECTIONS SUGGESTED BY THE HISTORY OF LEGISLATION.
The chief reflections which a study of Roman and English modes of
law-making seem to impress upon the inquirer’s mind are the three
following.
The first is that the law of best scientific quality is that which is
produced slowly, gradually, tentatively, by the action of the legal
profession. At Rome it was produced by the unofficial jurists under the
Republic, by the authorized jurists under the earlier Empire, by the
magistrates who framed and went on constantly revising the Edicts from
the time of the Punic Wars to that of Hadrian. In England it has been
produced by the writers of text-books, but still more by the judges from
the time of Glanvil and Bracton down to our own day. Our private law is
as much a growth of time as is our Constitution, or as are our ideas on
such subjects as economics or ethics. What has been true of the past
will be true of the future; and though we can foresee no changes in the
future comparable to those which have built up the existing fabric of
our law out of the customs of the thirteenth century, we must expect the
process of change to continue as long as life itself, and must beware
lest by any attempt at finality we should check a development which is
the necessary concomitant of health and energy.
The second is that the special point wherein the Roman system had an
advantage over our own, and indeed over that of all modern countries,
was the existence of an organ of government specially charged with the
duty of watching, guiding, and from time to time summing up in a concise
form, the results of the natural development of the law. The Praetor
with his Edict is the central figure in Roman legal history, and a
unique figure in the history of human progress. The Roman statutes of
the Republic were not, except perhaps in their brevity, superior to our
statutes down to the time of George III. The imperial constitutions,
especially the later ones, are inferior in substance and perhaps not
better in form than our later English statutes. The treatises of the
Roman lawyers, if more convenient in point of form than our volumes of
Reports, contained discussions not more acute and subtle, nor so great a
wealth of matter; and they were not more free from discrepancies. But
neither England nor the United States has ever had or can have any one
who could conduct legal reforms in such a way as did the Praetor.
A third reflection is that the various departments of legislation are
not equally well suited to be developed by one and the same organ of
legislation. Administrative law can hardly be created except by the
direct action of the sovereign power in the State, whether the monarch
or the Legislative Assembly acting at the instance of the Executive. In
every country that kind of law has been so created, and its growth
belongs to a comparatively late stage in the progress of a State. As the
need for a more elaborate civil and military administration increases,
so does the organ appropriate for legislating on such matters become
evolved. A very large part of recent legislation in England[141] and in
the United States belongs to this category, and similarly a large part
of the Codes of Theodosius II and of Justinian are filled by such
matters.
-----
Footnote 141:
According to Sir C. P. Ilbert (_op. cit._) nine-tenths.
-----
A system of procedure, civil and criminal, with the judicial machinery
required to work it, may be created either by the direct legislative
action of the supreme power, or by custom and the action of the Courts.
Both at Rome and in England it was through usage and by the Courts
themselves that the earlier system was slowly moulded; both at Rome and
in England it was direct legislation that established the later system.
Functions discharged by both the Praetor and the Chancellor are the
offspring of custom and not of statute. But the judicial system of the
Roman Empire, as well as the mode of procedure by _formulae_
(established by the _Lex Aebutia_ probably about B.C. 200) and the
criminal _quaestiones perpetuae_ of the later Republic, and similarly
all the changes made in English procedure and the English Courts during
the last two centuries, culminating in the sweeping reconstruction
effected by the Judicature Act of 1873, were the work of direct
legislation.
Criminal law has everywhere grown out of Custom, and has in all
civilized States been largely dealt with by direct legislation. In most
European countries it has been codified by statute, to the general
satisfaction of the people; and the conspicuous success of the Indian
Penal Code shows that English criminal law is susceptible of being so
treated. Thus we may say that all the branches of law which I have
enumerated are fit matters for direct legislation by the sovereign
power, and less fit to be left to jurists and magistrates.
As to private law in the narrower sense of the term, the law of
property, of inheritance, of contracts, of torts, and so forth, it has
already been remarked that it was at Rome and is in England the
offspring of Custom, that is to say, of the usages of the community, and
of the reflections and discussions of lawyers, bringing these usages
into a precise shape and developing them in points of detail, together
with the decisions of judges stamping them as recognized in those points
of detail as well as in their general principles. As time went on,
direct legislation was more and more resorted to both at Rome and in
England either to define or to change the law which jurists,
magistrates, and judges had wrought out of materials provided by custom.
It was often necessary, because there were faults in the law which the
Courts had not the power, even if they had the wish, to alter. Yet
direct legislation has seldom been successful except either in expunging
such faults, or in systematizing what was already well settled. Compare,
for instance, the modern law of negotiable instruments, built up by the
custom of merchants and the Courts, and not reduced to the form of a
statute till nearly every question had been thoroughly worked out by
lawyers in the course of judicial practice, with the law of Joint Stock
Companies, which is mainly the product of direct legislation. The former
is as definite and practically convenient as the latter is confused and
unsatisfactory. It is quite true that the latter topic is one which
could not well have been left to usage and the Courts. Yet such a
comparison indicates the difficulties which confront a legislature when
it attempts to create _de novo_, that is to say, on general principles
and without much help from custom. The law of Joint Stock Companies with
limited liability is one of those departments which needs to be treated
by the method of constant experiment, varying from time to time the
remedies needed against the new forms in which fraud and trickery
appear, and meeting by fresh provisions the devices by which crafty men
evade the rules intended to protect the unwary[142].
-----
Footnote 142:
It must, however, be added that the difficulties which surround this
most unsatisfactory branch of our law are partly due to the recurring
collision of two different theories, that of _Caveat emptor_ (let the
buyer beware) and that which would exact _uberrima fides_ (the amplest
good faith) from a company promoter or director.
-----
A magistrate like the Roman Praetor might perhaps deal with such a
branch of law more effectively than can either an English judge or the
English Parliament—more effectively than a judge, because his powers
would be wider; more effectively than Parliament, because he could more
promptly and easily drop a provision which had proved inefficient, and
try the working of a new one without purporting to make it a part of the
permanent law of the land.
It follows from these considerations that some branches of the law are
much more fit than others to be embodied in a code, and that the
discussions, more frequent and more animated thirty years ago than they
are to-day, as to the merits and drawbacks of codification, ought to
have distinguished more carefully than they did between the adaptability
to diverse departments of law of a system of rules enacted in a form
intended to be final. We may hope to have some light upon this subject
from the working of the new German Code. In any case, it may be
suggested that a society in which the ideas and habits that relate to
any one side of its life are changing—as for instance those relating to
the civil status of women have changed in England during the last fifty
years, or in which the methods of business are changing, as those
relating to joint stock enterprise have changed both in England and
America—does ill to stereotype in a form difficult to amend the
particular legal rules which govern it at any given moment, however
adequately that form may for the moment embody the substance of those
rules.
XV
THE
HISTORY OF LEGAL DEVELOPMENT
AT ROME AND IN ENGLAND
In the last preceding Essay the organs of legislation, and the methods
whereby they were worked at Rome and in England respectively, were
discussed and compared. A consideration of the course which legal change
took, in its various phases of development, reform or decay, may be
completed by inquiring into the general causes and forces which
determined and guided the process of change. To justify the selection of
Rome and England for comparison it is necessary to recur to two points
only in which the history of institutions in these two States presents a
remarkable analogy. Both have been singularly independent of outside
influences in the development of their political character and their
legal institutions. The only influence that seriously told on Rome was
that of the Greeks: yet how thoroughly Roman all the institutions that
ever had been Roman remained down till the second century of the Empire,
after Hellenic influence had for more than two hundred years been
playing freely and fully upon literature and thought! So English
institutions have been far less affected by external influences than
have been those of any other part of European Christendom. In France,
Italy, Germany, and Spain, the traces of Roman dominion were never
obliterated, and Roman law too, both through its traditions and through
the writings which embody it, has always been a more potent factor than
it ever was here. These countries have, moreover, borrowed more from
each other than we have done from any one of them, except, perhaps, in
the days when Normandy gave a Continental tinge to the immature
feudality of England. And, secondly, both Rome and England have extended
their institutions over vast territories lying beyond their own limits.
Each has been a conquering and ruling power, and the process by which
each grew into a World State from being, the one a City and the other a
group of small but widely scattered rural tribes, offers striking points
of resemblance as well as of contrast. I might add that there are
similarities in the character of the two nations, similarities to which
their success in conquering and ruling is due. But, for the moment, it
is rather to law and institutions than to character that I seek to
direct the reader’s attention.
Since the law of every country is the outcome and result of the economic
and social conditions of that country as well as the expression of its
intellectual capacity for dealing with these conditions, the causes
which modify the law are usually to be sought in changes which have
passed upon economic and social phenomena. When new relations between
men arise, or when the old relations begin to pass into new forms, law
is called in to adjust them. The part played by speculative theorists or
by scientific reformers who wish to see the law made more clear and
rational is a relatively small factor in legal change, and one which
operates only at rare moments. The process of development, if not wholly
unconscious, is yet spontaneous and irregular. Alterations are made, not
upon any general plan or scheme, but as and when the need for them
becomes plain, or when it has at least become the interest of some
ruling person or class to make them.
The relation of the general history, political, economic, and social, to
changes in laws and institutions is best seen at certain definite
epochs. It is indeed true that in nations which have reached a certain
stage of civilization the conditions of life, and the relations of men
and classes to one another, never remain quite the same from generation
to generation. Every mechanical discovery, every foreign war or domestic
insurrection, every accession or loss of territory, every religious or
intellectual movement leaves things somewhat different from what it
found them. Nevertheless, though the process of change is, except in
savage or barbarous peoples, practically constant and uninterrupted, it
becomes at certain particular moments much more swift and palpable,
rushing, so to speak, through rapids and over cataracts instead of
gliding on in a smooth and equable flow. These are the moments when a
nation, or its ruler, perceives that the economic or social
transformations which have been taking place require to be recognized
and dealt with by corresponding changes in law and institutions, or when
some political disturbance, or shifting of power from one class or group
to another, supplies the occasion for giving effect to views or
sentiments hitherto repressed. Accordingly it is profitable to give
special attention to these transitional epochs, because it is in them
that the relation between causes and consequences can be studied most
easily and on the largest scale. Let us see what are the epochs in Roman
and in English history which may be selected as those marked by
conspicuous legal or institutional changes before we examine the
relations of these changes to the forces which brought them about.
I. FIVE CHIEF EPOCHS OF LEGAL CHANGE AT ROME.
In the thousand years of Roman history that lie between the first
authentic records of the constitution and laws of the city, say 451
B.C., when the Decemviral Commission, which produced the laws of the
Twelve Tables, was appointed, and 565 A.D., when Justinian died, having
completed his work of codification and new legislation[143], we may
single out five such epochs.
-----
Footnote 143:
It is convenient to stop with Justinian, because he gave the law the
shape in which it has influenced modern Europe, and because our
historical data became much more scanty after his time. But of course
the history of the law goes on to A.D. 1204, and in a sense even to
A.D. 1453, in an unbroken stream, the codes issued by the later
Emperors, and especially the _Basilica_ of Leo the Philosopher, being
based upon Justinian’s redaction.
-----
1. The epoch of the Decemviral Legislation, when many of the old customs
of the nation, which had been for the most part preserved by oral
tradition, were written down, being no doubt modified in the process.
2. The days of the First and Second Punic Wars, when the growth of
population and trade, the increase of the number of foreigners resident
in Rome, and the conquest by Rome of territories outside Italy, began to
induce the development of the Praetorship as an office for expanding and
slowly remodelling the law.
3. The end of the Republic and early days of the Empire, when there was
a brilliant development of juridical literature, when the opinions of
selected jurists received legal authority from the Emperor’s commission,
when the Senate was substituted for the popular assemblies as the organ
of legislation, and when the administration of the provinces was
resettled on a better basis—all these changes inducing a more rapid
progress of legal reform.
4. The reigns of Diocletian and Constantine, when imperial legislation
took a fresh and vigorous start, and when the triumph of Christianity
brought a new, a powerful, and a widely pervasive force into the field
of politics and legislation.
5. The reign of Justinian, when the plan of codification whose outlines
Julius Caesar had conceived, and which Theodosius II had done something
to carry out, was at last completed by the inclusion of the whole law of
Rome in two books containing the pith of the then existing law, and when
many sweeping reforms were effected by new legislation.
It is less easy to fix upon epochs of conspicuous change in English
legal institutions and law, because English development has been on the
whole more gradual, and because the territorial limits of the area
affected by change have not expanded to anything like the same extent as
did the territories that obeyed Rome. Rome was a City which grew to be
the civilized world: the _Urbs_ became _Orbis Terrarum_. The English
were, and remain, a people inhabiting the southern part of an island,
and beyond its limits they have expanded (except as respects Ireland),
not by taking in new territories as parts of their State, but by
planting semi-dependent self-governing States which reproduce
England[144]. However, one may, for the sake of a comparison with Rome,
take the five following epochs as those at which the process of change
became the most swift and the most effective for destruction and
creation.
-----
Footnote 144:
I do not include India or the Crown Colonies, because the population
of these is not English.
-----
II. FIVE EPOCHS OF LEGAL CHANGE IN ENGLAND.
1. The time of Henry II, when the King’s Courts became organized, and
began to evolve a Common Law for the whole realm out of the mass of
local customs.
2. The times of Edward I and Edward III, when the solidification of the
kingdom saw the creation of a partly representative legislature, the
enactment of important statutes, and the establishment of a vigorous
organ for the development and amendment of the law in the
Chancellorship.
3. The time of Henry VIII and Edward VI, when the progress of society
and an ecclesiastical revolution caused the passing of several sweeping
legal reforms, separated the courts and the law of England from a system
of jurisprudence which had influenced it in common with the rest of
Western Christendom, and permanently reduced the power of the clergy and
of clerical ideas.
4. The epoch of the Great Civil War and Revolution, when legislative
authority, hitherto shared or disputed by the Crown and the Houses of
Parliament, passed definitively to the latter, and particularly to the
popular branch of Parliament, and when (as a consequence) the relation
of the Monarch to the landholding aristocracy, and that of the State to
its subjects in religious matters, underwent profound alterations.
5. The reigns of William IV and Victoria, when the rapid growth of
manufacturing industry, of trade, and of population, coupled with the
influence as well of new ideas in the sphere of government as of
advances made in economic and social science, has shaken men loose from
many old traditions or prejudices, and has, while rendering much of the
old law inapplicable, made a great deal of new legislation
indispensable.
Now let us consider what are the forces, influences, or conditions which
at all times and everywhere become the sources and determining causes of
changes in laws and institutions, these latter being that framework
which society constructs to meet its needs, whether administrative or
economic or social.
Five such determining causes may be singled out as of special
importance. They are these.
1. Political changes, whether they consist in a shifting of power as
between the classes controlling the government of a country, or affect
the structure of the governmental machinery itself, as for instance by
the substitution of a monarch for an assembly or of an assembly for a
monarch.
2. The increase of territory, whether as added to and incorporated in
the pre-existing home of a nation or as constituting a subject dominion.
3. Changes in religion, whether they modify the working of the
constitution of the country or involve the abolition of old laws and the
enactment of new ones.
4. Economic changes, such as the increase of industrial production or
the creation of better modes of communication, with the result of
facilitating the exchange of commodities.
5. The progress of philosophic or scientific thought, whether as
enouncing new principles which ultimately take shape in law, or as
prompting efforts to make the law more logical, harmonious and
compendious.
The influence of other nations might be added, as a sixth force, but as
this usually acts through speculative thought, less frequently by
directly creating institutions and laws, it may be deemed a form of No.
5.