committed to writing and embodied in a comprehensive statute, so in
England it is convenient to begin at the epoch when the establishment of
the King’s Courts enabled the judges to set about creating out of the
mass of local customs a body of precedents which gave to those customs
definiteness, consistency and uniformity. Justice, fixed and unswerving
justice, was in the earlier Middle Ages the chief need of the world, in
England as in all mediaeval countries; and the anarchy of Stephen’s
reign had disposed men to welcome a strong government, and to acquiesce
in stretches of royal power that would otherwise have been distasteful.
Henry II was a man of great force of character and untiring energy, nor
was he wanting in the talent for selecting capable officials. He had to
struggle, not only against the disintegrating tendencies of feudalism,
but also against the pretensions of the churchmen, who claimed exemption
from his jurisdiction, and maintained courts which were in some
directions formidable rivals to his own. He prevailed in both contests,
though it was not till long after that the victory was seen to have
remained with the Crown. It was his fortune to live at a time when the
study of law, revived in the schools of Italy, had made its way to
England, where it was pursued with a zeal which soon told upon the
practice of the Courts, sharpening men’s wits and providing for them an
arsenal of legal weapons. It is true that the law taught at the
Universities was the Roman law, and that the practitioners were almost
entirely ecclesiastics. Now the barons, however jealous they might be of
the Crown, were not less jealous of ecclesiastical encroachments and of
the imperial law. They could not prevent judges from drawing on the
treasures which the jurists of ancient Rome had accumulated, but they
did prevent the Roman law from becoming recognized as authoritative; so
that whatever it contributed to the law of England came in an English
guise, and served rather to supplement than to supersede the old customs
of the kingdom.
In this memorable epoch, which stamped upon the common law of England a
character it has never lost, the impulse which the work of law-making
received came primarily from the political circumstances of the time,
that is, from the desire of the king to make his power as the receiver
of taxes and the fountain of justice effective through his judges, and
from the sense in all classes that the constant activity of the Courts
in reducing the tangle of customs to order, no less than the occasional
activity of the king when he enacted with the advice and consent of his
Great Council statutes such as the Constitutions of Clarendon, was a
beneficial activity, wholesome to the nation. But though political
causes were the main forces at work, much must also be allowed to the
influence of ideas, and particularly to the intellectual stimulus and
the legal training which the study of Roman jurisprudence had given to
the educated men who surrounded and worked for the king and the bishops.
The development of English institutions has been at all times so slow
and so comparatively steady that it is not easy to fix upon particular
epochs as those most conspicuously marked by change. However I take the
epoch of Edward I and Edward III. Under Edward I, whose reign was one of
comparative domestic tranquillity, the organ of government whose supreme
legislative authority was to become unquestioned took its final shape in
passing from a Great Council of magnates to an Assembly consisting of
two Houses, in one of which the chief tenants of the Crown sat, while
the other was composed of representatives of the minor tenants and of
boroughs. Under his grandson the chief judicial Minister of the Crown
began to sit as a Court, granting redress in the name of the Crown in
cases or by methods which the pre-existing Courts were unable or
unwilling to deal with. Parliament passed under Edward I some statutes
of the first magnitude, such as _Quia Emptores_ and _De Donis
Conditionalibus_, which impressed a peculiar character on the English
land system, and introduced some valuable improvements in the sphere of
private rights and remedies. But the legislature was, for two or three
centuries, in the main content to leave the building up of the law to
the old Common Law Courts and (in later days) to the Chancellor. The
action of this last-named officer was, during the fifteenth, sixteenth
and seventeenth centuries, of capital importance, so that the
establishment of his jurisdiction is one of the landmarks of our legal
history. It was really a renewal, two hundred years after Henry II’s
time, of that king’s effort to secure the due administration of justice
through the realm, but it grew up naturally and spontaneously, with less
of conscious purpose than Henry II had shown. Both the legislature and
the Chancellor were the outcome of political causes, but it must not be
forgotten that in the methods taken by the Chancellor (hardly reduced to
a system till the seventeenth century) we find the working of a foreign
influence which thereafter disappears from English law, that, namely, of
the civil and canon laws of Rome and of the Roman Church, for the
Chancellors of the fourteenth and fifteenth centuries were all
ecclesiastics and drew largely from Roman sources.
The days of the Reformation bring two new and powerful influences to
bear upon laws and institutions. One of these influences is economic,
the other religious. The growth of industry and trade had so far
disintegrated the old structure of society and brought about new
conditions that not a few new laws, among which the most familiar and
significant are the Statute of Uses and the Statute of Wills, were now
needed. The nation was passing out of the stiffness of a society based
on landholding and recognizing serfdom into a larger and freer life. At
the same time the religious revolution which severed it from Rome, which
was accompanied by the dissolution of the monasteries, and which ended
by securing the ascendency of a new body of theological ideas and of
simpler forms of worship, involved many legal changes. The
ecclesiastical courts were shorn of most of their powers, and the law
they administered was cut off from the influences that had theretofore
moulded and dominated it. The position of the clergy was altered. New
provisions for the poor soon began to be called for. New tendencies, the
result of a bolder spirit of inquiry, made themselves felt in
legislation. One sees them stirring in the mind of Sir Thomas More. It
was some time before the religious and economic changes took their full
effect upon the law. But nearly all the remarkable developments that
make the time of Henry VIII and Elizabeth an epoch of legal change, may
be traced not so much to politics as to the joint influence of commerce
(including the growth of personal, as distinguished from real, property)
and of theology. Even the oceanic power and territorial expansion of
England, which began with the voyages of Drake and the foundation of the
Virginia Company and of the East India Company, did not affect either
the law or the institutions of the country. The establishment of distant
settlements was largely the result of the growing force of commercial
enterprise, in which there was at first very little of political
ambition, though it cordially lent itself to a political antagonism
first to Spain and then to France.
With the time of the Great Civil War we return to an era in which,
though religion and commerce continue to be potent forces, the first
place must again be assigned to political causes. The struggle which
overthrew the old monarchy effected two things. It extinguished the
claims of the Crown to a concurrent legislative or quasi-legislative
power. The two Houses of Parliament were established as an engine for
effecting legal changes, prompt in action and irresistible in
strength[152]. Towards this England had long been slowly tending, as
during a century before Augustus Rome slowly tended to a monarchy. The
work was completed at the Boyne and Aughrim, but the decisive blow was
struck at Naseby. And, secondly, it occasioned the accomplishment of
several broad and sweeping reforms in institutions as well as in law
proper. A Parliamentary Union of England, Scotland and Ireland was
effected which, though annulled by the Restoration, was a significant
anticipation of what the following century was to bring. The old system
of feudal tenure and the relics of feudal finance were abolished. New
provisions were made, and old ones confirmed and extended, for the
protection of the freedom of the subject in person and estate.
Commercial transactions were regulated, perhaps embarrassed, by a famous
enactment (the Statute of Frauds) regarding the evidence required to
prove a contract. Such of these things as lay outside the purely
political sphere were due partly to the development of industry and
commerce, which had gone on apace during the reign of James I, and was
resumed during the government of Cromwell and Charles II, partly to that
sense which political revolutions bring with them, that the time has
come for using the impulse of liberated forces to effect forthwith
changes which had for a long time before been in the air. On a still
larger scale, it was the Revolution and Empire in France that led to the
remodelling of French institutions and the enactment of Napoleon’s
Codes[153].
-----
Footnote 152:
As Milton says:—
‘And that two-handed engine at the door
Stands ready to strike once and strike no more.’
Footnote 153:
Although the Napoleonic government was in many things only completing
work begun under Lewis the Fourteenth.
-----
As usually happens, an era of abnormal activity in recasting
institutions and in amending the law was followed by one of comparative
quiescence. It was not till the middle of the reign of George III that
the beginnings of a new period of transition were apparent, not till
after the Reform Bill of 1832 that the largest among the many reforms
towards which men’s minds had been ripening were effected. These
reforms, which have occupied the last sixty-seven years, have touched
every branch of law. They include a great mitigation of the old severity
of the criminal law and the introduction of provisions for repressing
those new offences which are incident to what is called the progress of
society. They have expunged the old technicalities of pleading by which
justice was so often defeated. They have striven to simplify legal
procedure, though they have not succeeded in cheapening it, and have
fused the ancient Courts of Common Law with those of Equity. They have
removed religious disqualifications on the holding of offices and the
exercise of the suffrage. They have dealt with a long series of
commercial problems, and have in particular made easy the creation of
corporations for business and other purposes, given limited liability to
their members, and laid down many regulations for their management. They
have altered the law of land, enlarging the powers of life owners, and
rendering it easier to break entails. They have reorganized the fiscal
system, simplified the customs duties, and established a tariff levied
for revenue only. They have codified the law, mainly customary in its
origin, relating to such topics as negotiable instruments, sale and
partnership. They have created an immense body of administrative law,
extending and regulating the powers of various branches of the central
government, and, while remodelling municipal government, have created
new systems of rural local government. As regards the central
institutions of the country, several new departments of State have been
called into being. Ecclesiastical property has been boldly handled,
though not (except in Ireland) diverted to secular uses; a new Court of
Appeal for causes coming from the extra-Britannic dominions of the Crown
has been set up, and the electoral franchise has been repeatedly
extended.
These immense changes have been due to three influences. The first was
the general enlightenment of mind due to the play of speculative thought
upon practical questions which marked the end of last and the beginning
of this century, and of which the most conspicuous apostles were Adam
Smith in the sphere of economics and Jeremy Bentham in the sphere of
legal reform. The second was the rapid extension of manufacturing
industry and commerce, itself largely due to the progress of physical
science, which has placed new resources at the command of man both for
the production and for the transportation of commodities. The third
influence was political, and was itself in large measure the result of
the other two, for it was the combination of industrial growth with
intellectual emancipation that produced the transfer of political power
and democratization of institutions which went on from the Roman
Catholic Emancipation Act of 1829 to the Local Government Act of 1894.
Could we imagine this industrial and intellectual development to have
failed to work on political institutions as it in fact did work, it
would hardly the less have told upon administration and upon private
law, for the new needs would under any form of government, even under an
oligarchy like that of George II’s time, have given birth to new
measures fitted to deal with them. The legislation relating to Joint
Stock Companies (beginning with the Winding-Up Acts), which filled so
important a place in the English Statute-book from 1830 to 1862, and
which still continues, though in a reduced stream, would under any
political conditions have been required owing to the growth of commerce,
the making of railways, the increased need for the provision of water,
gas and drainage. And there went on, hand and hand with it, an equally
needed development by the Courts of Equity of the law of partnership, of
agency and of trusts, as applied to commercial undertakings. What the
political changes actually did was to provide a powerful stimulus to
reform, and an effective instrument for reform, while reducing that
general distaste for novelties which had been so strong in the first
half of the eighteenth century.
If we now review the general course of changes in institutions and law
in the two States selected for comparison we shall be struck by two
points of difference.
V. SOME DIFFERENCES BETWEEN THE DEVELOPMENT OF ROMAN AND THAT OF ENGLISH
LAW.
The branch of private law which is most intimately connected with the
social and economic habits of a nation, and which, through social and
economic habits, most affects its character, is that branch which
touches Property, and the connexion of property with the Family. The
particular form which the institutions relating to property, especially
immovable property, take, tells upon the whole structure of society,
especially in the earlier stages of national growth. The rules, for
instance, which govern the power of an owner to dispose of his property
during his life or by will, and those which determine the capacity of
his wife and children to acquire for themselves by labour or through
gift, and to claim a share in his estate at his decease if he dies
intestate, or even against his last will—these rules touch the richer
and middle classes in a community and affect their life. So one may
perhaps say that the development of this branch of law comes nearer than
any other to being the central line of legal development, bearing in
mind that it is the needs and wishes of the richer and middle classes
which guide the course of legal change. Here, however, we discover an
interesting point of comparison between Roman and English legal history.
At Rome it is the history of the Family, especially as taken on its
economic or pecuniary side, the most important part of which is the Law
of Inheritance, that plays the largest part. The old rules, which held
the Family together, and vested in the father the control of family
property, were at first stringent. From the third century B.C. onwards
they began to be modified, but they were so closely bound up with the
ideas and habits of the people that they yielded very slowly, and it was
not till the bold hand of Justinian swept away nearly all that remained
of the ancient rules of succession, and put a plain and logical system
in their place, that the process was complete.
In England, on the other hand, it is the Law of Land that is the most
salient feature in the economico-legal system of the Middle Ages. Among
the Teutons the Family had not been, within historic times at least, a
group closely bound together as it was among the Italians, whereas the
historical and political conditions of the eleventh and twelfth
centuries had in Western Europe made landholding the basis of nearly all
social and economic relations. Hence the land customs then formed took a
grip of the nation so tight that ages were needed to unloose it. The
process may be said to have begun with a famous statute (_Quia
Emptores_) in the reign of Edward I. Its slow advance was quickened in
the seventeenth century by political revolution; and the Act of 1660
which abolished knight service recorded a great change. The peaceful
revolution of 1832 gave birth to the series of statutes which from 1834
down to our own day have been reshaping the ancient land system, but
reshaping it in a more piecemeal and perplexing fashion than that in
which Justinian reformed the law of succession by the 118th and 127th
Novels. Problems connected with landholding still remain in England, as
they do in nearly all States, especially where population is dense; but
they differ from the old problems, and though disputes relating to the
taxation of land give trouble, and may give still more trouble,
questions of tenure have lost the special importance which made them
once so prominent in our legal history.
Both Rome and England have been, far beyond any other countries except
Russia, expanding States. Rome the City became Rome the World-State. The
Folk of the West Saxons went on growing till it brought first the other
kingdoms of South Britain, Teutonic and Celtic, then the adjoining isles
of Ireland and Man, then a large part of North America, then countless
regions far away over the oceans under the headship of the descendants
of Cerdic and Alfred. But in the case of Rome this expansion by conquest
was the ruling factor in political and legal evolution, the determining
influence by which institutions were transformed. In England, on the
other hand, it is the relations of classes that have been the most
active agency in inducing political change, and the successive additions
of territory have exerted a secondary influence on institutions and an
insignificant influence on law. Not only has English law been far less
affected (save at the first two of the five epochs above described) by
foreign law or foreign thought than Rome was, but the increase of
England by the union, first of Scotland and then Ireland, and by the
acquisition of transoceanic dominions, has not interrupted the purely
insular or national development of English law. The conquest of Ireland,
which began in the twelfth century but was not completed till the
seventeenth, made no difference, because Ireland, always since the
twelfth century far behind England in material progress and settled
social order, received a separate civil administration with separate
Courts. As these Courts administered English law, they followed in the
path which England had already travelled and did not affect the progress
of law in England. Nothing speaks more of the long-continued antagonism
of the Teutonic and the Celtic elements in Ireland, and of the dominance
of the Teutonic minority over the Celtic majority, than the practical
identity of the common law in the two countries, and the total absence
of any Celtic customs in that law. The few and comparatively slight
differences which exist to-day between the law of England and that of
Ireland are all due to statute. One is the absence of judicial divorce
in Ireland, which an Act passed so recently as 1857 introduced in
England. The second is to be found in the law relating to land, largely
altered by statutes passed for Ireland by the British Parliament of our
own time. The third is the existence in Ireland of what are admitted to
be exceptional and supposed to be temporary penal provisions, the last
of which is the Prevention of Crime Act of 1887. As regards Scotland,
when her king became king of England, and when, a century later, her
Parliament was united with that of England, she retained her own law
intact. In some few respects her law, founded on that of Rome, and her
system of judicial administration are better than those of England, nor
has she failed to contribute distinguished figures to the English bench
and bar; but, as she stands far below England in population and wealth,
she has affected the law of the larger country as little as the
attraction of the moon affects the solid crust of the Earth.
The vaster territorial expansion of the eighteenth and nineteenth
centuries has told quite as little on the law of England as did the
unions with Scotland and Ireland. When the English began to people what
are now the self-governing colonies, and when India came under British
sway, English law was too fully developed to be susceptible to
influences from them, not to add that they were too distant to make any
assimilation either desirable or possible. Had India lain no further
from England than Sicily and the Greek cities lay from Rome, had she
been as near the level of English civilization as those countries were
to that of Roman civilization, and had she been conquered in the reign
of Elizabeth instead of in the reign of George III, the history of
English institutions and English law must have been wholly unlike what
it has in fact been. These three differences measure the gulf which
separates the course of English from that of Roman development.
Another salient point in which the two States may be compared relates to
the smaller part which purely political as compared with economic and
intellectual changes have played in the development of English laws and
institutions. Although there is a sense in which every political change
may be described as the result of an economic or intellectual change, or
of both taken together, still it is true that at Rome the desire to
grasp political power counted for more in the march of events than it
has done in England.
Economic changes sometimes operate on politics by raising the material
condition of the humbler class and thereby disposing and enabling them
to claim a larger share of political power. This happened at Rome more
frequently in the earlier than in the later days of the Republic. In
England it has happened more in later times than it did in earlier.
Sometimes, however, economic causes so depress the poor that their
misery becomes acute or their envy intense, whence it befalls that they
break out into revolt against the rich. This was on the point of
happening more than once at Rome, but has been no serious danger in
England since the days of Richard II. Sometimes, again, the growth of
immense fortunes and the opportunities of gaining wealth through
politics threaten the working of popular institutions. This occurred at
Rome; and was one of the causes which brought the Republic to its death.
It is a peril against which England has had, and may again have, to take
precautions.
Changes in thought and belief operate on politics either by weakening
the deferential and submissive habits of the classes which have been
excluded from power so that they insist on having their fair share of
it, or by implanting in the minds of the middle and upper classes new
ideas which grow strong enough to make them insist on bringing
old-fashioned practice into accord with new and more enlightened theory.
It was the concurrence of these two forms of intellectual change that
gave its specially destructive character to the French Revolution. Ideas
of course act most quickly and powerfully when they are such as rouse
emotion, for that which remains a mere intellectual concept or
speculative opinion is not a thing to stir or to shake established
institutions. The best illustration is to be found in religious beliefs.
But the notion of Equality—that is to say, the notion that rights vested
in every man as a man demand that every man shall be treated alike—has
also proved an energetic explosive. Influences of this kind counted for
little at Rome. Neither have they, except in the form of religious
beliefs, or when their force coincided with that exerted by religious
convictions, become the source of strife or constitutional change in
England.