speculative or scientific thought, are constantly, and therefore
gradually at work, while the other three usually, though not invariably,
operate suddenly and at definite moments. All have told powerfully both
on Rome and on England. But as the relative importance of each varies
from one country to another, so we shall discover that some have counted
for more in the case of Rome, some in that of England. The differences
throw an instructive light on the annals of the two nations.
III. OUTLINE OF LEGAL CHANGES AT ROME.
The legal history of Rome begins with the law of the Twelve Tables. This
remarkable code, which, it need hardly be said, was neither a code in
the modern sense, nor in the main new law, but rather a concise and
precise statement of the most important among the ancient customs of the
people, dominated the whole of the republican period, and impressed a
peculiar character upon the growth of Roman law from the beginning till
the end of the thousand years we are regarding. It gave a sort of unity
and centrality to that growth which we miss in many other countries,
England included, for all Roman statutes bearing on private law were
passed with reference to the Twelve Tables, nearly all commentaries
grouped themselves round it, and when a new body of law that was neither
statute nor commentary began to spring up, that new law was built up
upon lines determined by the lines of the Twelve Tables, since the
object was to supply what they lacked or to modify their enactments
where these were too harsh or too narrow. Its language became a model
for the form which later statutes received. It kept before the minds of
jurists and reformers that ideal of a systematic and symmetrical
structure which ultimately took shape in the work of Theodosius II and
Justinian. Now the law of the Twelve Tables was primarily due to
political discontent. The plebeians felt the hardship of being ruled by
customs a knowledge of which was confined to the patrician caste, and of
being thereby left at the mercy of the magistrate, himself a patrician,
who could give his decision or exert his executive power at his absolute
discretion, because when he declared himself to have the authority of
the law, no one, outside the privileged caste he belonged to, could
convict him of error. Accordingly the plebs demanded the creation of a
commission to draft laws defining the powers of the Consuls, and this
demand prevailed, after a long struggle, in the creation of the
Decemvirs, who were appointed to draft a body of general law for the
nation. This draft was enacted as a Statute, and became thenceforth, in
the words of Livy[145], ‘the fountain of all public and private law.’
Boys learnt it by heart down to the days of Cicero, and he, despite his
admiration for things Greek, declares it to surpass the libraries of all
the philosophers[146].
-----
Footnote 145:
‘Decem tabularum leges quae nunc quoque in hoc immenso aliarum super
alias acervatarum legum cumulo fons omnis publici privatique est
iuris’ (iii. 34).
Footnote 146:
‘Bibliothecas mehercule omnium philosophorum unus mihi videtur xii
tabularum libellus, siquis legum fontes et capita viderit, et
auctoritatis pondere et utilitatis ubertate superare’ (_De Orat._ i.
44). An odd comparison, and one in which there is more of patriotism
than of philosophy.
-----
For some generations there seem to have been comparatively few large
changes in private law, except that declaration of the right of full
civil intermarriage between patricians and plebeians, which the Twelve
Tables had denied. But the knowledge of the days on which legal
proceedings could properly be taken remained confined to the patricians
for nearly a century and a half after the Decemvirs. The plebs had,
however, been winning political equality, and three or four years after
the time when the clerk Flavius revealed these pontifical secrets it was
completed by the admission of the plebeians to the offices of pontiff
and augur.
Meanwhile Rome was conquering Italy. The defeat of Pyrrhus in B.C. 275
marks the virtual completion of this process. A little later, the First
Punic War gave her most of Sicily as well as Sardinia and Corsica, and
these territories became provinces, administered by magistrates sent
from Rome. She was thus launched on a policy of unlimited territorial
expansion, and one of its first results was seen in two remarkable legal
changes. The increase in the power and commerce of Rome, due to her
conquests, had brought a large number of persons to the city, as
residents or as sojourners, who were not citizens, and who therefore
could not sue or be sued according to the forms of the law proper to
Romans. It became necessary to provide for the litigation to which the
disputes of these aliens (_peregrini_) with one another or with Romans
gave rise, and accordingly a Magistrate (_Praetor peregrinus_) was
appointed whose special function it became to deal with such disputes.
He was a principal agent in building up by degrees a body of law and a
system of procedure outside the old law of Rome, which received the name
of _ius gentium_ (the law of the nations) as being supposed to embody or
be founded on the maxims and rules common to the different peoples who
lived round Rome, or with whom she came in contact[147]. Through the
action of the older Urban Praetor much of this _ius gentium_ found its
way into the law administered to the citizens, in the way described in
the last preceding Essay. Similarly the Proconsuls and Propraetors, who
held their courts in the subject provinces, administered in those
provinces, besides the pure Roman law applicable to citizens, a law
which, though much of it consisted of the local laws and customs of the
particular province, had, nevertheless, a Roman infusion, and was
probably in part, like the _ius gentium_, generalized from the customs
found operative among different peoples, and therefore deemed to
represent general principles of justice fit to be universally applied.
The Edicts which embodied the rules these magistrates applied became a
source of law for the respective provinces[148].
-----
Footnote 147:
As to the _ius gentium_ see Essay XI, p. 128 sqq.
Footnote 148:
As to this see Essay II, vol. i. p. 91.
-----
These remarkable changes, which may be said to belong to the period
which begins with the outbreak of the First Punic War (B.C. 264),
started Roman law on a new course and gave birth to a new set of
institutions whereby new territories, ultimately extended to embrace the
whole civilized world, were organized and ruled. It was through these
changes that the law and the institutions of the Italian City became so
moulded as to be capable not only of pervading and transforming the
civilizations more ancient than her own, but of descending to and
influencing the modern world. Now these changes, like those which marked
the period of the Twelve Tables, had their origin in political events.
In the former case it was internal discontent and unrest that were the
motive forces, in the latter the growth of dominion and of trade, trade
being the consequence, not so much of industrial development as of
dominion. But in both cases—and this is generally true of the ancient
world as compared with the modern—political causes play a relatively
greater part than do causes either of an economic or an intellectual and
speculative order[149].
-----
Footnote 149:
Of course I do not mean to disparage the immense importance of
economic causes always and everywhere, but in the ancient world, where
communities were mostly small, they tended more quickly to engender
political revolutions, and thus their action became involved with
politics. In the modern world, where nations are mostly large and
political change is usually more gradual, economic factors frequently
tell upon society and affect the working of institutions without
leading to civil strife. The more the world develops and settles down,
and the further it moves away from its primitive conditions, the
greater becomes the relative significance of the economic elements.
-----
How much is to be set down to external influences? The Roman writers
tell us of the sending out of a body of roving commissioners to examine
the laws of Athens and other Greek cities to collect materials for the
preparation of the Twelve Tables. So too the contact of Rome with the
Greek republics of Southern Italy in the century before the Punic Wars
must have affected the Roman mind and contributed to the ideas which
took shape in the _ius gentium_. Nevertheless any one who studies the
fragments of the Twelve Tables will find in them comparatively few and
slight traces of any foreign influence; and one may say that both the
substance of the Roman law and the methods of procedure it followed
remain, down till the end of the Republic, so eminently national and
un-Hellenic in their general character that we must assign a secondary
part to the play of foreign ideas upon them.
The next epoch of marked transition is that when the Empire of Rome had
swollen to embrace the whole of the West except Britain and Western
Mauretania, and the whole of the known East except Parthia[150]. It was
the epoch when the Republican Constitution had broken down, not merely
from internal commotions, but under the weight of a stupendous dominion,
and it was also the epoch when the philosophies of Greece had made the
Roman spirit cosmopolitan, and dissolved the intense national
conservatism in legal matters which distinguished the older jurists.
Here, therefore, two forces were at work. The one was political. It laid
the foundations of new institutions, which ripened into the autocracy of
the Empire. It substituted the Senate for the popular Assembly as the
organ of legislation. It gave the head of the State the power of
practically making law, which he exercised in the first instance partly
as a magistrate, partly through the practice of issuing to selected
jurists a commission to give answers under his authority[151]. The other
force was intellectual. It made the amendment of the law, in a liberal
and philosophical sense, go forward with more boldness and speed than
ever before, until the application of the new principles had removed the
cumbrousness and harshness of the old system. But it should be
remembered that this intellectual impulse drew much of its power from
political causes, because the extension of the sway of Rome over many
subject peoples had accustomed the Romans to other legal systems than
their own, and had led them to create bodies of law in which three
elements were blent—the purely Roman, the provincial, and those general
rules and maxims of common-sense justice and utility which were deemed
universally applicable, and formed a meeting-ground of the Roman and the
provincial notions and usages. So here too it is political events that
are the dominant and the determining factor in the development both of
private law and of the imperial system of government, things destined to
have a great future, not only in the form of concrete institutions
adopted by the Church and by mediaeval monarchy, but also as the source
of creative ideas which continued to rule men’s minds for many
generations.
-----
Footnote 150:
‘Parthos atque Britannos’ are aptly coupled by Horace as the two
peoples that remained outside the Empire.
Footnote 151:
Described in the last preceding Essay, p. 257.
-----
Nearly three centuries later we come to another epoch, when two forces
coincide in effecting great changes in law and in administration. The
storms that shook and seemed more than once on the point of shattering
the fabric of the Empire from the time of Severus Alexander to that of
Aurelian (A.D. 235 to 270), had shown the need for energetic measures to
avert destruction; and the rise to power of men of exceptional capacity
and vigour in the persons of Diocletian and Constantine enabled reforms
to be effected which gave the imperial government a new lease of life,
and made its character more purely despotic. Therewith came the stopping
of the persecution of the Christians, and presently the recognition of
their religion as that which the State favoured, and which it before
long began to protect and control. The civil power admitted and
supported the authority of the bishops, and when doctrinal controversies
distracted the Church, the monarchs, beginning from Constantine at the
Council of Nicaea, endeavoured to compose the differences of jarring
sections.
These changes told upon the law as well as upon institutions. New
authorities grew up within the Church, and these authorities, after long
struggles, obtained coercive power. Not only was the spirit of
legislation in such subjects as slavery and the family altered—marriage
and divorce, for instance, began to be regarded with new eyes—but a
fresh field for legislation was opened up in the regulation of various
ecclesiastical or semi-ecclesiastical matters, as well as in the
encouragement or repression of certain religious opinions. The influence
on law of Greek customs, which seemed to have been expunged by the
extension of citizenship to all subjects a century before Constantine,
makes itself felt in his legislation.
Besides these influences belonging to the sphere of politics and
religion, economic causes, less conspicuous, but of grave moment, had
also been at work in undermining the social basis of the State and
inducing efforts to apply new legislative remedies. Slavery and the
decline of agriculture, particularly in the Western half of the Empire,
throughout which there seems to have been comparatively little
manufacturing industry, had reduced the population and the prosperity of
the middle classes, and had exhausted the source whence native armies
could be drawn. Thus social conditions were changing. The growth of that
species of serfdom which the Romans called _colonatus_ belongs to this
period. The financial strain on the government became more severe. New
expedients had to be resorted to. All these phenomena, coupled with the
more autocratic character which the central government of the Empire
took from Diocletian onwards, induced a greater and sometimes indeed a
hasty and feverish exuberance of legislation, which was now effected
solely by imperial ordinances.
Industrial decay seems to have been more rapid in Western than in the
Eastern provinces, though palpable enough in such regions as Thrace and
Greece. But everywhere there was an intellectual decline, which appeared
not least in the sinking of the level of juristic ability and learning.
The great race of jurists who adorned the first two and a half centuries
of the Empire had long died out. We hear of no fertile legal minds, no
law books of merit deserving to be remembered, during the fourth and
fifth centuries of our era. The mass of law had however increased, and
the judges and practising advocates were, except in the larger cities,
less than ever capable of dealing with it. The substitution of Roman for
provincial law effected by the Edict of the Emperor Antoninus Caracalla
had introduced some confusion, especially in the Eastern provinces,
where Greek or Oriental customs were deeply rooted, and did not readily
give place to Roman rules. The emperors themselves deplore the ignorance
of law among practitioners: and presently it was found necessary to
prescribe an examination for advocates on their admission to the bar.
Accordingly the necessity for collecting that which was binding law and
for putting it into an accessible form became greater than ever. It had
in earlier days been an ideal of perfection cherished by theorists; it
was now an urgent practical need. It was not the bloom and splendour but
the decadence of legal study and science that ushered in the era of
codification. A century after the death of Constantine, the Emperor
Theodosius II, grandson of Theodosius the Great, reigning at
Constantinople from A.D. 408 to A.D. 450, issued a complete edition of
the imperial constitutions in force, beginning from the time of
Constantine, those of earlier Emperors having been already gathered into
two collections (compiled by two eminent jurists) in current use.
Shortly before a statute had been issued giving full binding authority
to all the writings (except the notes of Paul and Ulpian upon Papinian)
of five specially famous jurists of the classical age (Papinian, Paul,
Gaius, Ulpian, Modestinus). The advisers of Theodosius II had intended
to codify the whole law, including the ancient statutes and decrees of
the Senate and Edicts of magistrates so far as they remained in force,
as well as the writings of the jurists, but the difficulties were too
great for them, and they contented themselves with a revised edition of
the more recent imperial constitutions.
Justinian was more energetic, and his codification of the whole law of
the Empire marks an epoch of supreme importance in the history not
merely of Rome but of the civilized world, for it is possible that
without it very little of the jurisprudence of antiquity would have been
preserved to us, so that the new nations which were destined to emerge
from the confusion of the Dark Ages might have lacked the foundation on
which they have built up the law of the modern world. It is indeed an
epoch which stands alone both in legal and in political history.
Justinian’s scheme for arranging and consolidating the law included a
compilation of extracts from the writings of the jurists of the first
three centuries of the Empire, together with a collection of such and so
many of the Constitutions of the Emperors as were to be left in force,
both collections being revised so as to bring the contents of each into
accord and to harmonize the part of earlier date (viz. that which
contained the extracts from the old jurists) with the later law as
settled by imperial ordinances. It was completed in the space of six
years only—too short a time for so great a work. It was followed by a
good deal of fresh legislation, for the Emperor and his legal minister
Tribonian, having had their appetite whetted, desired to amend the law
in many further points and reduce it to a greater symmetry of form and
perfection of substance. The Emperor moreover desired, for Tribonian was
probably something of a Gallio in such matters, to give effect to his
religious sentiments both by laying a heavy hand on heretics and by
making the law more conformable to Christian ideas. Thus the time of
Justinian is almost as significant for the changes made in the substance
of the law as for the more compendious and convenient form into which
the law was brought.
Some thirty years before the enactment of Justinian’s Codex and Digest
(which, though intended for the whole Empire, did not come into force in
such Western provinces as had already been lost) three collections of
law had been made by three barbarian kings for the governance of their
Roman subjects. These were the _Edictum_ of Theodorich, King of the East
Goths, published in A.D. 500, the _Lex Romana Visigothorum_, commonly
called the _Breviarium Alaricianum_, published by Alarich II, King of
the West Goths (settled in Aquitaine and Spain), in A.D. 506, a year
before his overthrow by Clovis, and the _Lex Romana Burgundionum_,
published by the Burgundian King Sigismund in the beginning of the sixth
century. These three compilations, each of which consists of a certain
number of imperial Constitutions, with extracts from a few jurists,
ought to be considered in relation to Justinian’s work, partly because
each of them did for a part of the Roman West what he did for the East,
and, as it turned out, for Italy and Sicily also, when Belisarius
reconquered those countries for him, and partly because they were due to
the same need for accessible abridgements of the huge mass of confused
and scattered law which prompted the action of Justinian himself. They
are parts of the same movement, though they have far less importance
than Justinian’s work, and, unlike his, include little or no new law.
The main cause of the tendency to consolidate the law and make it more
accessible was the profusion with which Diocletian and his successors
had used their legislative power, flooding the Empire with a mass of
ordinances which few persons could procure or master, together with the
decline of legal talent and learning, which made judges and advocates
unable to comprehend, to appropriate and to apply the philosophical
principles and fine distinctions stored up in the treatises of the old
jurists. Here, therefore, political and intellectual conditions,
conditions rather of decline than of progress, lay at the root of the
phenomenon. But in the case of Justinian something must also be credited
to the enlightened desire which he, or Tribonian for him, had conceived
of removing the complexities, irregularities and discrepancies of the
old law, bringing it nearer to what they thought substantial justice,
and presenting it in concise and convenient form. Plato desired to see
philosophy in the seat of power, and in Justinian philosophic theory had
a chance such as it seldom gets of effecting permanently important
changes by a few sweeping measures. Yet theory might have failed if it
had not been reinforced by the vanity of an autocrat who desired to
leave behind him an enduring monument.
This rapid survey has shown us that two forces were always operative on
the development of Roman law—internal political changes and the
influence of the surrounding countries. As Rome conquered and Romanized
them, they compelled her institutions to transform themselves, and her
law to expand. Economic conditions, speculative thought and religion had
each and all of them a share in the course which reforms took, yet a
subordinate share.
IV. OUTLINE OF THE PROGRESS OF LEGAL CHANGES IN ENGLAND.
Let us now turn to England and see what have been the forces that have
from time to time brought about and guided the march of legal change,
and what have been the relations of that change to the general history
of the country.