wife in respect of property and of personal control, so also have there
been throughout all history two aspects of the institution of marriage,
one in which the sensual and material element has predominated, the
other in which the spiritual and religious element has come in to give a
higher and refining character to the relation. In this case, however, it
is not possible to make the relative importance of these two aspects
synchronize with the general progress of civilization, nor even with the
elevation of the position of women. It is true that among barbarous and
some semi-civilized races the physical side of the institution is almost
solely regarded, and that we may suppose a remote age when primitive man
was in this respect not much above the level of other animals. But there
have been epochs when civilization was advancing while the moral
conception of marriage, or at any rate the popular view of marriage as a
social relation, was declining. The tie between husband and wife in the
earlier days of Rome was not only closer but more worthy and wholesome
in its influence on the lives of both than it had become in the age of
Augustus. Christianity not only restored to the tie its religious
colour, but in dignifying the individual soul by proclaiming its
immortality and its possibility of union with God through Christ gave a
new and higher significance to life as a whole, and to the duties which
spring from marriage. The greatest advance which the Christian world
made upon the pagan world was in the view of personal purity for both
sexes which the New Testament inculcated, a view absent from the Greek
and Italian religions and from Greek and Latin literature, though there
had been germs of it in the East, where habits of sensual indulgence
more degrading than those of the West were opposed by theories of
asceticism, which passed into and tinged primitive and mediaeval
Christianity.
The more ennobling view of love and of the marriage relation held its
ground through the Middle Ages. There was plenty of profligacy—as indeed
the ideal and the actual have never been more disjoined than in the
Middle Ages. But in spite of profligacy on the one hand, and the
glorification of celibacy on the other, and notwithstanding the
subjection of women in the matter of property and even of personal
freedom, the conception of wedded life as recognized by the law of the
Church and enshrined in poetry remained pure and lofty. That the
Reformation took away part of the religious halo which had surrounded
matrimony may be admitted. Whether this involved a practical loss is a
difficult question. It may be that, in their anxiety to be rid of what
they deemed superstition, and in their disgust at the tricky and
mercenary way in which ecclesiastical lawyers had played fast and loose
with the intricate rules of canonical impediment, the Reformers of
Germany, Scandinavia, and Scotland forgot to dwell sufficiently on the
fact that though marriage is a civil relation in point of form and legal
effect, it ought to be, to Christians, essentially also a religious
relation, the true consecration of which lies not in the ceremonial
blessing of the Church, but in the solemnity of the responsibilities it
involves. Yet it is not clear that, in point of domestic happiness or
domestic purity, the nations which have clung to the mediaeval doctrine
stood a century ago, or stand now, above those which had renounced it.
General theories regarding the influence of particular forms of
religion, like theories regarding the influence of race, are apt to be
misleading, because many other conditions have to be regarded as well as
those on which the theorist is inclined to dwell.
Whoever regards the doctrines of the Roman Catholic Church respecting
marriage and realizes her power over her members will expect to find a
higher level of sexual morality in Roman Catholic countries than he will
in fact find. So on the other hand will he be disappointed who accepts
that view of the superiority in social virtues of peoples of Teutonic
stock which finds so much favour among those peoples, for dissolutions
of the marriage tie have latterly grown more frequent than they formerly
were among Protestant and Teutonic nations, and are apparently less
condemned by public opinion than was the case in older days.
The material progress of the world, the mastery of man over nature
through a knowledge of her laws, the diffusion of knowledge and of the
opportunities for acquiring it, are themes which ceaselessly employ the
tongues of speakers and the pens of journalists, while they swell with
pride the heart of the ordinary citizen. But they are not the things
upon which the moral advancement of mankind or the happiness of
individuals chiefly turns. They co-exist, as the statistics of recent
years show, with an increase over all, or nearly all, civilized
countries of lunacy, of suicide, and of divorce.
XVII
_INAUGURAL LECTURE_[234]
THE ACADEMICAL STUDY OF THE
CIVIL LAW
Narrow as is the sea that parts England from the continent of Europe, it
has cut her off as effectually from many continental influences as if
she lay far out in mid-Atlantic. When it is considered how close are our
affinities of blood with the Low-German races, and how intimate during
the Middle Ages were our relations, intellectual as well as political,
with the whole of Western Europe, the individuality of the English
people and its institutions appears singularly well-marked; and one is
surprised to see in how many points the great nations of the continent
resemble one another and understand one another, while all alike differ
from us, and are comparatively incomprehensible to us. This strangeness
of England is what most strikes the foreigner who comes among us; be he
Frenchman, German, Spaniard, or Italian, he seems less at home in
England than anywhere else in Christendom. As in the woodland wealth of
our country, as in the architecture of our towns and the structure of
our houses, so also in the social usages and mental habits of Englishmen
one discovers something peculiar, something bearing witness to a
prolonged isolation, to an exemption from those influences, speculative
as well as practical, which have operated on all or nearly all the other
members of the European commonwealth.
-----
Footnote 234:
Delivered at Oxford, February 25, 1871, on entering on the duties of
the Regius Professorship of Civil Law.
-----
Such isolation has been in no respect more marked or more fruitful in
results than in the case of our law. In spite of the immense power of
the mediaeval church, in spite of the influence of the universities, and
of the strangers who flocked to them from all quarters, the Roman
jurisprudence exerted a comparatively slight influence upon the
technical development of our law and the formation of our habits of
legal thought. Here, where the language, and to a great extent the
customs of the people, were of Teutonic origin, it found a less
congenial soil than in Italy or France, while there were no such
political associations with the Roman name as those which gave the
Corpus Juris its authority in Germany. Whatever be the cause, it is
clear that Roman law was never thoroughly domesticated in England. True
it is that one of the first notices we have of the existence of our
University is that which mentions the Lombard Vacarius as lecturing on
law (doubtless on the Digest of Justinian) at Oxford, under the
patronage of Archbishop Theobald, in the days of King Stephen[235]; and
there is abundant evidence that the study was regularly pursued there
down till and in the sixteenth century. The statutes of the older
colleges make provision for some of the fellows proceeding to degrees in
law; and indeed the only law degrees Oxford has given, since those in
canon law were abolished by King Henry the Eighth, have been degrees in
civil law. But the customary or common law, unrecognized in the
universities, gained exclusive possession of the seats of legal study in
London. That hostility to the pretensions of the foreign laws which had
been so forcibly expressed by the barons at Merton in Henry the Third’s
time, and again by the Parliament of Richard the Second, maintained ever
after a watchful and jealous attitude. Persons who had mastered Roman
law at Oxford were obliged, when they practised in the courts at
Westminster, to disguise or disclaim any appeal to its authority; and
when the Reformation finally broke the link between England and Rome,
and in doing so loosened the ties that bound English men of letters to
the general movement of European learning and thought, the study of the
canon law virtually expired among us, while that of the Civil Law
maintained only a feeble and flickering life[236]. Its practical utility
(except to practitioners in the ecclesiastical courts) was apparently at
an end; and in the cloud of dullness and sluggishness that settled down
upon Oxford and Cambridge at the end of the seventeenth century, it only
shared the fate of other studies which had as much to commend them to an
active and curious intellect. A few distinguished publicists and
lawyers, such as Arthur Duck, Selden, Hale, Holt, and those two
brightest ornaments of the English bench, Lord Hardwicke and Lord
Mansfield, were well versed in its rules, but the great mass of English
lawyers regarded it with suspicion and dislike, and the very praise
which Hale bestows testifies to the slight interest felt in it. ‘He set
himself much,’ says Bishop Burnet his biographer, ‘to the study of the
Romane law, and though he liked the way of judicature in England by
juries much better than that of the civil law, where so much was trusted
to the judge, yet he often said that the true grounds and reasons of law
were so well delivered in the Digests, that a man could never understand
law as a science so well as by seeking it there, and lamented much that
it was so little studied in England.’
-----
Footnote 235:
‘Oriuntur discordiae graves, lites et appellationes antea inauditae.
Tunc leges et causidici in Angliam primo vocati sunt, quorum primus
erat magister Vacarius. Hic in Oxenefordia legem docuit, et apud Romam
magister Gracianus et Alexander, qui et Rodlandus, in proximo papa
futurus, canones compilavit.’—(Gervas. Dorob.; _Act. Pontif Cantuar.;
Theodbaldus_.)
Footnote 236:
For some time after the breach Englishmen used to resort to
continental universities, and there, of course, they found Roman law
taught; but this practice died out before very long.
-----
The ancient rivalry of the Civil and the Common law proved eventually
the cause of mischief to both. Having reigned bn 494.png supreme in the
universities, the civil law had never taken root in the Inns of Court,
and when it fell in the universities it fell utterly. On the other hand,
the common lawyers, whose study was originally not recognized in Oxford
or Cambridge, were well enough content with the position they had
obtained for it in London, and do not seem to have seen how much was to
be gained by introducing it into the ancient seats of learning. Thus
both systems, to the loss as well of the profession as of the
universities, came to be neglected in the very places where they might
best have been cultivated in a philosophical spirit; and it was not
until Mr. Viner founded his Chair in A.D. 1756 that English law was
recognized in Oxford as an academic study, while in Cambridge no
provision was made for the teaching of it until the beginning of the
present century.
That isolation of England to which the neglect of the Civil Law may be
ascribed has of late years perceptibly diminished. Owing partly to the
more frequent and easy intercourse which improved means of communication
have produced, partly to the removal of old national prejudices, partly
to that increased recognition of the power of ideas which is commonly
associated with the growth of democracy, civilized Europe has within the
last eighty or ninety years become much more of a single intellectual
commonwealth than it has been at any time since the Reformation,
perhaps, indeed, since the fall of the Roman Empire. The long-standing
jealousy of the Civil Law as a foreign system, associated with the
overweening pretensions of emperors and popes, has at last vanished. A
century ago this feeling was still so active, that Lord Mansfield’s
enemies found it worth while to charge him with having, as a Scotsman,
an undue partiality for the Roman law, and designing, by means of its
despotic principles, to sap the liberties of Englishmen—‘corrupting by
treacherous arts the noble simplicity and free spirit of our Saxon
laws;’ though as a matter of fact, Lord Mansfield left Scotland at the
age of three, and the use which he made of his knowledge of Roman
jurisprudence was made by applying its rational principles to the
elucidation of the civil, and indeed chiefly of the commercial parts of
the English system. Such prejudices seem now to lie far behind. We live
in the midst of a general unsettling of respect for whatever exists,
which does not spare the laws or even the constitution of England, and
welcomes new ideas from every quarter. Thus the influence of the great
German civilians begins to tell upon English students, while the rise of
a vigorous historical school in England has quickened our curiosity in
whatever helps to explain the ancient and the mediaeval world. The
feeling so awakened has happily coincided with an interest in the
scientific amendment of the form of English law, different from that
desire to improve and correct its substance of which Bentham was the
first exponent, and which inspired the labours of Romilly and Brougham.
The efforts of these great men were chiefly directed to the removal of
harsh enactments, of rules due to economic errors, and of technicalities
which defeated the ends of justice. Their modern successors, finding the
law purged of its grosser faults, are rather concerned with its
reduction into a more orderly and systematic shape. The three leading
questions of reform at this moment are questions of form, relating not
so much to substance as to the shape and form which the law ought to
take. What are the best means of fusing legal and equitable
procedure[237]? How may Acts of Parliament be drawn more concisely and
symmetrically? How are we to frame, out of the vast and chaotic mass of
our reported cases and statutes, an organized body of rules, a Digest or
a Code? Finding themselves thus brought face to face with the problem
which Justinian partially solved, and which several modern states, as
notably France, Austria, Prussia, and Italy have again had to
solve[238], English lawyers are being driven to examine the means
whereby codification was accomplished, and the results that followed it.
They feel that for the execution of so great a work men are needed who
have had something more than an empirical training, and are disposed to
believe that in any systematic course of legal history and philosophy
which might be devised to form the mind of the jurist as preliminary to
his purely professional studies, a chief place should be assigned to the
study of the Roman law. Thus, what with our own actual needs, what with
the influence of the scientific spirit of the Continent, there has been
awakened in England an interest in the Civil Law and an estimate of its
worth which, although still matter rather of faith than of sight, is yet
strong enough to give the University of Oxford not merely a motive for
endeavouring to revive the study, but a reasonable hope that it may be
revived with success, to the substantial benefit as well of the
universities themselves as of the legal profession.
-----
Footnote 237:
This was effected by the Judicature Act of 1873.
Footnote 238:
To these one may now add the new German Empire, which was coming into
being when this Lecture was delivered in A.D. 1871. A Civil Code for
the Empire began to be prepared in 1872 and came into force in 1900.
-----
To prove that Roman law does deserve in England, and especially from the
University, more attention than it now receives may well be thought, at
least in Oxford, a spot which was long its home, a superfluous labour.
That it fills so large a place in the world’s history, that it is the
fruit of so great an expenditure of human genius and industry, is of
itself a sufficient reason why it should engage the labours of a learned
body which has, in Bacon’s words, taken all knowledge to be its
province. I may therefore content myself with touching upon some of the
purposes which the study may be made to serve, and indicating some of
the directions in which it may most usefully be pursued; premising
always that academical study has two objects, the furtherance of
learning and discovery, and the preparation of young men to be, not
merely useful and active in their future occupations, but also, in the
widest sense of the word, good citizens. These two objects have been
sometimes, under the names of Research and Education, opposed to one
another, and no small controversy has been maintained touching their
respective claims. Are they not in truth closely intertwined? since the
greater the zeal wherewith a study is pursued, so much the greater is
the teacher’s influence on the taught; and since experience shows that
when the work of education has been neglected by schools and
universities, such neglect has not been caused by any absorption in
abstract studies, but by mere dullness and self-indulgence, as fatal to
study as they can be to education.
The various utilities of a knowledge of the Roman law fall into two
classes: those which connect it with the liberal studies of a
university, and specially with classical philology, with history, and
with ethics; and those which belong rather to the faculty of law, and
entitle it to a place in a strictly professional curriculum.
Taking the former of these heads first, there is no more obvious reason
for pursuing the study than the light which it throws upon Roman
history, which is, it can hardly be too often repeated, substantially
the foundation of all modern European history. No people was ever so
thoroughly permeated by legal ideas as were the Romans; none rated the
dignity of the profession so high, spent so much pains in the
elaboration of legal rules, and formed, let it be added, so worthy a
conception of what law ought to be. Hence the whole political history of
the Roman people and state is so involved with its legal institutions,
that it can be understood only when regarded as derived from and
conditioned by them. This is signally true not only of the regal and
earlier republican period—in all early states of society, legal customs
do for a people what a political constitution does in later times, or,
in other words, public and private law are closely intertwined—it is
true also of the republic in the days of Sulla and Julius Caesar, and of
the long period of the Empire. Most of the constitutional arrangements
of the Roman state depended upon those of private law, and many of the
gravest political questions turned upon legal doctrines. The subject of
the Agrarian laws, for instance, is intimately involved with the legal
conception of possession, as distinct from ownership, and can hardly be
mastered without a knowledge of technical theory. The structure of the
_gens_, the nature of the agnatic tie and of the _patria potestas_, the
judicial character of the chief administrative magistrates, the doctrine
of adoption—all and each of them exerted a powerful influence on the
political fortunes of Rome. Adoption, for instance, became from time to
time under the Empire the means of working a system of appointment to
the sovereign power, which could show the merits without the evils of
hereditary succession. I forbear to dwell on the number of historical
incidents, like that of Virginia and Appius Claudius, or of allusions in
poetical and philosophical writers, such as those which every scholar
remembers in Horace, Ovid, Juvenal, and most of all in Cicero, which
only a knowledge of the civil law can elucidate. A student of the
classics need not read the Corpus Juris merely for the sake of
understanding these, any more than one is bound to read Coke or Hale for
the sake of better seeing the point of the numerous legal phrases in
Shakespeare. Few would go so far as the enthusiastic civilian who
maintained that every divine ought to learn Roman law, because there are
passages in the New Testament which a knowledge of it serves to explain.
But, though every scholar need not, some scholars certainly ought; for
there is much in the literature, and, indeed, in the literary spirit and
feeling of the Romans, which is due to legal influences, and which can
be fully apprehended and expounded by those only who have made
themselves familiar with these influences in their source. In
particular, such study is necessary in order to appreciate the character
of the Empire in its relation to the peoples of the Mediterranean whom
it embraced. Rome’s great gift to the world was her jurisprudence; and
the most interesting chapter in her history is that which traces,
coincidently with the gradual extension of Roman citizenship and Roman
law to the subject races, the steady amelioration in its positive rules,
and its development from a harsh and highly technical system into one
grounded on principles of reason and justice, principles which are
indeed common to all civilized peoples, but which the Roman jurists were
the first to expound and apply. To this great work was devoted, from the
time of Augustus onwards, nearly all the genius and labour, not of Rome
merely but of the Roman world, which was not expended on abstract
speculation; and it is more than an accident that long after the
language of Virgil and Cicero had become debased in the hands of florid
rhetoricians and soulless versifiers, its purity and its nervous
precision were preserved in the hands of men like Papinian and
Modestinus.
A second utility which may be claimed for our study, is its bearing upon
the history of mediaeval and modern thought. When the Western Empire
perished amidst the storms of the fifth century, its law did not perish
with it, but remained a chief factor in European history, more widely,
although less directly, influential. The barbarian conquerors, who
brought with them only the rude customs by which they had lived in their
native forests, soon felt the need of a regular legal system, and were
glad to recognize that which they found subsisting. They allowed their
subjects, the Latin-speaking provincials, to use it; in some countries
they came to use it themselves; parts of it were collected and published
in such compilations as the Breviarium of the West Gothic Alarich the
Second and the Lex Romana Burgundionum. At the close of the Dark Ages,
the study of the original texts revived, first in Italy, then in France,
England, and Spain. Schools of law arose all over Europe. Immense pains
were spent on the interpretation of the Digest, and it became
thenceforth, for many generations, the foundation of the education and a
principal part of the knowledge of every lawyer and publicist. As the
mighty fabric of ecclesiastical power grew up, it created with the help
of Roman materials its own body of laws, varied of course by the nature
of the subjects, and coloured by religious ideas, but substantially
Roman after all. In this, as in so much else, the Papacy was, to use the
forcible expression of Hobbes, ‘the ghost of the old Empire, sitting on
its tomb and ruling in its name.’ And thus, in the hands of the very
ecclesiastics who forbade its study, as hostile to their own pretensions
and favourable to those of their antagonist, the Emperor, the doctrines
of the Civil Law obtained a wider range than ever before. As its
continued existence was one chief cause of the fantastic belief in the
continued life of the Roman Empire, so that very belief became in turn
the cause of its ultimate reception, in Germany, where it had not
prevailed, no less than in Italy, where it had prevailed continuously,
as effective and binding law. Being studied by all the educated men, the
poets, the philosophers, the administrators of the Middle Ages, it
worked itself by degrees into the thought of Christendom, losing the
traces of its origin, as it became part of the common property of the
world. A knowledge, therefore, of what it was, and of how it influenced
mankind, helps to explain much which might otherwise have remained
obscure in the literature of the Middle Ages and the Renaissance—much
whose bearing a modern finds it hard to grasp, just because law holds a
different place in his conceptions, and because he does not realize the
power it exerted over untrained and uncritical minds. Theology is an
instance, but by no means the only instance, of a branch of inquiry over
which legal notions once exercised a sway they have now lost.