has been less interrupted by convulsions than that of any other great
State, for even the scars made by the Civil War were before long healed,
so that hardly any of the old institutions perished, though some of them
passed into new phases. The new buildings which popular government has
within the present century added to the old edifice are built out of the
same kind of stone, and (if one may venture to pursue the metaphor)
weather to the same colour. So the growth of our law, both public and
private, both criminal and civil, has been a gradual and quiet growth,
due in the main to the steady increase in the magnitude and complexity
of the industrial and commercial relations of life, which have made the
law expand and improve at the bidding of practical needs. Where politics
have affected the law, this has been through the rise of the humbler
classes, a rise largely due to economic causes. So likewise the
influence of ideas, of new views as to what law should be and how it
should serve the community, has been marked by few sudden crises, and
has been ruled by practical good sense rather than by aspirations after
a theoretical perfection. As regards private law, this remark applies to
the Romans also, although the constant strain placed upon their
institutions by their territorial expansion as well as the differences
between a City State and a large rural State exposed their political
system to more frequent shocks and ultimately to a more radical
transformation.
Finally, it may be observed that the interest felt in law, and the
amount of intellectual effort given to its development, was probably
greater among the educated class in Rome than it has ever been in any
large section of the English people. Romans of intellectual tastes had
fewer things to think about, fewer subjects to attract or to distract
them, than the English have had. Law was closely interwoven with public
life. Country life and country sports, commerce, religion, travel and
adventure, covered less of the mental horizon than these pursuits have
covered to Englishmen of the upper or educated class, so that more of
thought and time was left to be devoted to law. Nor were many Romans
carried off into other regions, like the Greeks, by the love of art, or
of music, or of abstract speculation.
From this reflection another arises, viz. that legal and constitutional
studies, as a subject for research and thought, find the competition of
other subjects more severe in England to-day than they did in the
eighteenth century[154]. Historical inquiries, economic inquiries, and,
to a still larger extent, inquiries in the realm of Nature, claim a far
larger share in the interest of eager and active minds now than in the
days of Hobbes or Locke or Bentham. They have done much to extrude law
from the place it once held among subjects of interest to unprofessional
persons. This is true all over the world; but legal topics, whether
constitutional or belonging to the sphere of penal or administrative, or
international or ordinary private law, seem now to claim even fewer
votaries in England than they do in France or Germany, and certainly
fewer than they do in the United States.
-----
Footnote 154:
I owe this observation to my friend Mr. Dicey.
-----
VI. OBSERVATIONS ON FRANCE AND GERMANY.
The sketch which I have sought to draw of the relations of general
history to legal history might have been with advantage extended to
include the legal history of other States, and particularly of two such
important factors in modern civilization as France and Germany. But,
apart from the undue length to which an essay would stretch if it tried
to cover so large a field, there is a good reason why we may deem these
two countries less well suited for the sort of comparative treatment
here essayed. Neither of them has had the kind of independent and truly
national legal development which belonged to Rome and belongs to
England. Each of them started on its career with a body of pre=existing
law, made elsewhere, viz. the Roman law which had come down to France
and to Germany from antiquity. In Gaul, even in the parts most settled
by the Franks, the law of the Empire held its ground, though everywhere
largely modified by feudal land usages, and in the northern half of the
country, when it had ceased to be Gaul and had become France, in the
form of customs and not of written Roman texts. In Germany the old
Teutonic customary law was by degrees (except as regards land rights)
supplanted by the _Corpus Iuris_ of Justinian, in conformity with the
idea, fantastic as that idea now appears to us, which regarded the Roman
Emperors from Julius Caesar down to Constantine the Sixth as the
predecessors in title of the Saxon and Franconian Emperors. Thus neither
the French nor the Germans built up on their own national foundation a
law distinctively their own. Moreover, both Germany and France stand
contrasted with England as well as with Rome in the fact that neither
country ever had a true central legislature or central system of law
courts comparable with the Parliament and King’s Courts of England. The
German Diet, though enactments were occasionally made in it with its
consent by the sovereign, enactments which however were not universally
obeyed, dealt very little with law proper, even in the days of its
greatest strength. Still less were the French States-General, even
before their long eclipse, an effective legislature. Thus the
development of the law of both Germany and France fell mainly into the
hands of the jurists, qualified to some extent in Germany by the
ordinances enacted by the electors, landgraves, and other princes, as
well as by the free al’ cities, and (in later days) by the kings whose
dominions formed part of the decaying Empire, and qualified in
post-mediaeval France by the ordinances of the king. In both countries
it was upon the Roman law, as modified by custom, that the jurists
worked, and hence in neither did a body of law grow up which was truly
national, in the sense either of having a distinctive national quality
or of embracing the whole nation or of having been enacted by a national
legislature. The first complete unity given to law in France was given
by Napoleon. His Code was based on the Roman law theretofore used, which
had to a considerable extent been already codified under Lewis XIV; yet
the creation of one Code for the whole country was a step so bold that
it could hardly have been attempted except by an autocrat and on the
morrow of a revolution. The first modern effort to give unity to law in
Germany, itself an efflux of the aspiration for national unity, was made
by the General Bills of Exchange Law (_Wechselordnung_) (1848-1850),
while a general Commercial Code (_Gemeines Handelsgesetzbuch_) enacted
in various States between 1862 and 1866 was re-enacted for the new
Empire in 1871. The fuller unity long desired was attained in 1900, when
the new general Code for the whole German Empire came into force. This
similarity between the legal history of France and that of Germany seems
the more curious when one remembers that, so far as mere political unity
is concerned, France attained that unity comparatively early, one may
say at the end of the fifteenth century, while Germany continued down
till the extinction of the old Empire in 1806 to go on losing what
political unity she had possessed. It was not till 1866 that she began
to regain it, though the Customs Union of the German States, formed in
1829, had been a presage of what was coming.
VII. PRIVATE LAW LEAST AFFECTED BY POLITICAL CHANGES OR DIRECT
LEGISLATION.
One phenomenon is common to the legal history in all these nations. That
part of the law which has the greatest interest for the scientific
student, and the greatest importance for the ordinary citizen, the
private civil law of family and property, of contracts and torts, has
been the part least affected either by political changes or by direct
legislation. It has been evolved quietly, slowly and almost
imperceptibly, first by popular custom, then by the labours of jurists
and the practice of the Courts. Direct legislation by the supreme power
has stepped in chiefly to settle controversies between conflicting
authorities, or to expunge errors too firmly rooted for judges to
rectify, or to embody existing usage in a definite and permanent form.
In the sphere of private law, and even in that of criminal law (so far
as not affected by politics), legislation scarcely ever creates any
large new rule, and seldom even any minor rule which is absolutely new,
not an enlargement of something which has gone before. Pure legislative
novelties mostly turn out ill. Fortunately, the good sense of
Englishmen, like that of Romans, has rarely permitted them to appear.
The parallel drawn between the history of Roman and that of English law
is less instructive when we reach the later stages of that history. It
cannot be made complete, not only because we know comparatively little
of the inner condition and practical working of the Courts after the
time of Constantine, but because there was after his time both a
political and an intellectual decay, which few will profess to discover
in the England of this century. The expansion and enrichment of the
Roman system had stopped even before Constantine, while that of English
Law is still proceeding[155]. In England commerce is still growing,
education is still advancing, new and complicated problems are still
emerging, so that many forces continue to work for the development of
law. Though we cannot foresee what lines this development will follow we
may feel sure that some of the old causes of change are disappearing.
The democratization of political institutions seems nearly complete,
religious passions have grown cold, and all classes have been so fully
admitted to a share in political power that any such bold reforms in
central and local administration, in procedure, in penal law, and in one
or two departments of private civil law as followed the Reform Bill of
1832, seem improbable. In some departments the possibilities of further
progress appear to be exhausted, though there are others, such as those
concerned with questions of the right of combination among employers or
among workmen, and the character which motive imparts to acts in
themselves lawful on which the last word is far from having been
said[156]. But there are at least two real difficulties which remain to
be grappled with. One relates to the methods of legal proceedings. Their
cost is so great as to deter many persons from the attempt to enforce
just claims, to impose a heavy and unfair burden upon successful
litigants, and to furnish opportunities for blackmail (especially in
libel cases) to men who are equally devoid of money and of scruples. All
efforts to cheapen them have so far failed. The other problem relates to
a matter of substance. What are the general principles to be followed in
empowering the State to regulate the conduct of individuals or groups of
individuals, in permitting the central government or a local authority
to compete with individuals in industrial enterprises, and in
restricting the power of combinations formed for commercial or
industrial objects? This group of problems are being daily pressed to
the front by political forces on the one hand and by industrial progress
on the other. They are as urgent in the United States as in Britain. Nor
are they matters for legislation only, for cases frequently arise which
the best legislation cannot count upon having provided for, and which it
needs not only technical skill but also a philosophic grasp of
principles on the part of the bar and bench to conduct to a solution.
The experience of the ancient world and that of the Middle Ages throws
little light upon them. But as they have appeared simultaneously in many
modern nations, each may have something to learn from the others.
Comparative jurisprudence has no more interesting field than this: nor
is there any task in labouring on which an enlightened mind may find a
wider scope for the devotion of learning and thought to the service of
the community.
-----
Footnote 155:
Within two centuries after Justinian’s time official abridgements of
his _Corpus Iuris_ began to be issued, and it was virtually superseded
in the end of the ninth century by the _Basilica_ of the Emperor Leo
the Philosopher. The action of his successors was largely directed to
cutting down the old law into a shape better fitted for the changed
conditions of the Empire, and the declining intelligence of the
people.
Footnote 156:
The interest excited by cases such as those of the _Mogul Steamship
Company_ v. _Macgregor_ and _Allen_ v. _Flood_ illustrates this.
-----
I am tempted to venture on some other predictions as to the influences
that may be expected to work on the legal changes of the coming century.
But we have been pursuing an historical, not a speculative, inquiry, and
it will be enough to suggest that industry and commerce, as quickened by
the progress of physical science, are likely to be factors of increasing
power, and that the purely political element in the development of law
will count for less than that contributed by the effort to readjust
social conditions and to give effect to social aspirations.
XVI
MARRIAGE AND DIVORCE UNDER
ROMAN AND ENGLISH LAW
I. INTRODUCTORY.
In all communities that have risen out of the savage state, no legal
institution is at once so universal, and also so fundamental, a part of
their social system as is Marriage. None affects the inner life of a
nation so profoundly, or in so many ways, ethical, social, and economic.
None has appeared under more various forms, or been more often modified
by law, when sentiment or religion prescribed a change. In a famous
passage which has been constantly quoted, and often misunderstood,
Ulpian takes marriage as the type of those legal relations which are
prescribed by the Law of Nature, and extends that Law so far as to make
it govern the irrational creatures as well as mankind[157]. If then the
relation be so eminently natural, one might expect it to be also
uniform. Yet it so happens that there is no relation with which custom
and legislation have, in different peoples and at different times, dealt
so differently. Nature must surely have spoken with a very uncertain
voice when, as the jurist says, she ‘taught this law to all animals.’
Nor does this infinite diversity show signs of disappearing. While in
most branches of law the progress of parallel development in various
civilized states is a progress towards uniformity, so that the
commercial law, for instance, of the chief European countries and of the
United States is, as respects nineteen-twentieths of its substance,
practically identical, the laws of these same countries are, in what
relates to the forms of contracting marriage, the effect of marriage
upon property rights, the grounds for dissolving and modes of dissolving
marriage, extremely different, and apparently likely to remain
different. Even within the narrow limits of the United Kingdom, England
and Scotland have each its own system. Ireland has a different law from
England in respect of the mode of solemnization; while, as respects
divorce, the divergence goes so far that grounds are recognized as
sufficient for divorce in Scotland which are not admitted in England,
while in Ireland a divorce, except by private Act of Parliament, cannot
be obtained at all. And the efforts to assimilate these three diverse
systems made by reformers during two or three generations have been
followed by so little practical result that they have been of late years
altogether dropped.
-----
Footnote 157:
See Essay XI, p. 150.
-----
Out of the long and obscure and intricate history of the subject, and
out of the many still unsolved problems it presents, I propose to select
one subject for discussion, viz. the history of the Roman law of the
marriage relation, as compared with the English law, and particularly
with some of the later developments of English law in the United States.
On the antiquities of the matter, and in particular on the interesting
and difficult questions relating to primitive forms of marriage, and to
the polyandry which is supposed to have marked the earlier life of many
peoples, I shall not attempt to touch. Neither can I do more than glance
at the ecclesiastical history of the institution, important as the
church has been in influencing civil enactments and moulding social
sentiment.
To elucidate the Roman system, some few technical details must be given,
but I shall confine myself to those which are needed in order to
facilitate a comparison between it and that of England, and to show how
essentially the later Roman conception of the relation differed from
that which Christianity created in mediaeval Europe.
II. CHARACTER OF MARRIAGE IN EARLY LAW.
When clear light first breaks upon the ancient world round the
Mediterranean Sea we find that the relation of the sexes exists in three
forms. The most savage tribes, such as those which Herodotus saw or
heard of in Libya and Scythia, have no regular marriage at all. Some
lived in a kind of promiscuity; some were probably polyandrous. The
Eastern peoples—Persians, Lydians, Babylonians, and so forth—are
polygamous, as was Israel in the days of Moses and Solomon, though in a
much lesser degree after the Captivity, and as was the Trojan Priam of
the Homeric poems. The Western peoples, and especially the Greeks and
the Italians, were, broadly speaking, monogamous, although concubinage
superadded to lawful marriage, especially among the Greeks, was not
unknown. The contrast of the East and the West was marked; and this
particular difference was not only characteristic but momentous, since
it presaged a different course for the social development of the two
regions[158]. So when the Teutonic and Celtic peoples came later on the
stage, they too were generally monogamous, though among the heathen
Celts the tie seems to have been somewhat looser than among the Teutons,
and a plurality of wives may have been not uncommon in heathen times.
Tacitus, while dwelling on the sanctity of German marriages, observes
that occasionally the chieftains had more than one wife, owing to the
wish of other families for alliance with them[159]. Polygamy slowly died
out of the East under Roman rule, though possibly never quite
extinguished, for we find prohibitions of it renewed by the Emperors
down to Diocletian, before whose time all subjects had become citizens.
It maintained itself in the Oriental court of the Sassanid kings of
Persia, and was indeed one of the features of Persian life which most
shocked the philosophers of the later Roman Empire. As there is no trace
of it in the Roman law[160], it need not concern us further, since it
has never, except in the singular instance of the Mormons, reappeared in
any of the communities which have been regulated either by Roman or by
Teutonic law[161].
-----
Footnote 158:
Euripides (_Androm._ vv. 173-180) contrasts the marriage usages of
barbarians and Greeks, and dilates (cf. v. 465 sqq.) on the evils of
polygamy.
Footnote 159:
Tac. _Germ._ c. xvii.
Footnote 160:
Although Julius Caesar, if we may credit Suetonius, caused a measure
to be drafted for enabling him to marry as many wives as he liked for
the sake of having legitimate issue (Suet. _Julius_, c. 52).
Footnote 161:
Among the Jews it was (though forbidden by Roman law) not formally
abolished till the tenth century.
-----
Before describing the Roman system, let us note three general features
which belong to the marriage customs, not indeed of all, but certainly
of most peoples in the earlier stages of civilization. They are worth
noting, because they constitute the central threads of the history of
the relation during civilized times.
1. The marriage tie has more or less of a religious or sacred character,
being generally entered into with rites or ceremonies which place it
under supernatural sanctions. This is, of course, more distinctly the
case where monogamy prevails.
2. In the marriage relation the husband has a predominant position both
as regards control over the person and conduct of the wife, and as
regards property, whether that which was hers or that which was brought
into common stock by her and by him.
3. The tie is comparatively easy of dissolution by the husband, less
easily dissoluble by the wife. This is a natural consequence of the
inferior position which she holds in early society.
Although these three features are generally characteristic of the
earlier stages of family law, they are not universally present; and
their presence or absence in any given community does not necessarily
coincide with a lower or higher scale of civilization in that community.
The temptation to generalize in these matters is natural, but it is
dangerous. True as may seem the general proposition, that the higher or
lower position of women in any society is a pretty good index to the
progress that society has made, there are too many exceptions to the
rule for us to take it as a point of departure for inquiry. Nor can
these exceptions be always accounted for by any one cause, such as race
or religion.
III. THE EARLIER FORM OF ROMAN MARRIAGE LAW.
Now let us come to the Romans, of whom we may say that it is they who
have built up the marriage law of the civilized world, partly by their
action as secular rulers in pagan times, partly by their action as
priests in Christian times. The other modifying elements, and
particularly the Hebrew and Teutonic influences, which have worked upon
the marriage laws of Christendom, are of quite inferior moment.
Roman law begins with two phenomena which seem at first sight
inconsistent. One is the complete subjection of the wife to the husband
on the legal side, as regards both person and property. The other is her
complete equality on the social and moral side, as regards her status
and the respect paid to her.
In describing the nature of this subjection, one must make it clearly
understood that, strictly speaking, it was not by the mere fact of
marriage, that is to say, by the legal act necessary to constitute
marriage, that a woman entered that position of absolute absorption into
the legal personality of her husband which is so remarkable a feature of
the old law. Whatever may have been the case in prehistoric times, we
find that at the time when the Twelve Tables were enacted (B.C. 449) a
marriage could be contracted without any forms or ceremonies whatever,
by the sole consent of the parties; and that, where this was the case,
the husband did not acquire any power over the wife, and the latter
retained whatever property she previously possessed. It was therefore
not marriage _per se_ that created the power of the husband, for a woman
might be legally married and not be under the marital power. But
although this ‘free marriage,’ as we may call it (the term is not Roman,
but invented by modern jurists), was legally possible, the custom, and
in old days the almost invariable custom, of the people was to add to
the marriage a ceremony not essential to its validity as a marriage, but
one which had important legal consequences. We may safely assume that
there was originally no true marriage without the ceremony, but at the
time of the Twelve Tables this was no longer the case. The ceremony
created a relation which the Romans called Hand (_manus_), and brought
the wife into her husband’s power, putting her, so far as legal rights
went, in the position of a daughter (_filiae loco_). It gave the husband
all the property she had when she married. It entitled him to all she
might acquire afterwards, whether by gift or by her own labour. It
enabled him to command her labour, and even to sell her, though the sale
neither extinguished the marriage nor made her a slave, but merely
enabled the purchaser to make her work, while still requiring him to
respect her personal rights[162]. In compensation for these
disadvantages the wife became entitled to be supported by her husband,
and to receive a share of his property at his death, as one of the
‘family heirs’ (_sui heredes_), whom he could disinherit only in a
formal way. She had by coming under his Hand passed out of her original
family, and lost all right by the strict civil law to share in the
inheritance of her father.
-----
Footnote 162:
Some writers doubt whether this power of sale existed, and refer to a
supposed ‘law of Romulus’ mentioned by Plutarch which devoted to the
infernal gods whoever sold his wife. But the balance seems to incline
in favour of the existence of the power.
-----