only three bodies of literature containing systematized thought—the
Church Fathers, the philosophy of Aristotle, known through translations,
and the Roman law. The last counted for less than the two former in
moulding ideas. But it counted for a great deal.
The history of law and of the evolution of legal conceptions, although
in one aspect a professional subject, may also claim to be regarded as a
branch of general academical study. Within the last few years, the
application to it of the comparative method of inquiry has given it a
new significance and interest, has enabled it to teach us much
respecting the structure of primitive society, and has made it the means
of illustrating many curious phenomena in the philosophy and politics of
more recent times. Now to the student of legal history a knowledge of
Roman Law is indispensable: first, because it was an independent system,
uninfluenced by any preceding one, save to some slight extent by the
customs of Greek cities, whereas all subsequent European systems have
been influenced by it; and secondly, because it alone presents an
uninterrupted continuity of development, stretching over ten centuries
from the Twelve Tables to Justinian, and later still through the
dynasties of Constantinople. No sudden intrusion of a new element, like
that caused in England by the Norman Conquest, nor even the internal
strife which altered the form of the Roman state, disturbed that equable
and self-consistent expansion and amendment of the laws of Rome, which
the widening relations of the city, as a commercial, a conquering, a
world-embracing community, made necessary. Legislative power passed from
the patrician curies to the popular Assemblies of the nation, from the
Assemblies to the Senate and the Emperor, but the conduct of legislation
remained in the hands of an educated profession, and the harmonious
evolution of principles was not interrupted. Nearly all the phenomena
which the history of law in other countries presents, find their
parallel and explanation in the history of its growth at Rome: nor is
the study without a practical value for the modern legislator. The
nature and limits of the jurisdiction of our own Court of Chancery are
better understood when compared and contrasted with the functions
exercised by the Praetor as exponent of the _ius gentium_. The
codification of Justinian has been constantly cited, and occasionally
examined, in recent discussions respecting the propriety and the methods
of digesting and codifying English law.
Assuming, without further argument, the claims of the Civil Law to be
recognized among the general liberal studies of the University, I may
proceed to consider its special utility to the lawyer, and the reasons
for giving it a place among the studies of the legal faculty. Some zeal
has of late been shown for the revival of such studies in England and in
Oxford; and it will be generally admitted that young lawyers ought to be
more regularly instructed in the science and art of their profession
than they are now; that much of this instruction may be, and ought to
be, given at the University; and that, apart altogether from the service
to be rendered by teaching, it would be a gain to the country if law
were cultivated and written upon at the Universities, in the same
philosophical spirit, and with the same systematic fullness, as in the
schools of Germany. There a great writer is often also a great teacher.
Such were Savigny and Thibaut; such was that illustrious man whom
Heidelberg lost five months ago[239]—a man whose learning was so vast
and well-digested, whose expositions of law were so penetrating and
luminous, so philosophical in method, so eloquent in language, so
animated in delivery, that to have listened to him was to have gained a
new conception of the power of oral teaching.
-----
Footnote 239:
Dr. K. A. von Vangerow.
-----
An obvious ground for cultivating it, and one likely to have weight with
the practising lawyer, is the immense influence it has exerted on the
jurisprudence of modern Europe. As respects England, this influence is
matter rather of antiquarian interest than of practical utility. Much of
our law, especially of our mercantile law, and of that which is
administered in courts of equity, may indeed be traced to a Roman
origin; while the Court of Admiralty, and even to some extent, the
probate and matrimonial Courts which have now replaced the ancient
ecclesiastical tribunals, owe a more direct allegiance to the imperial
jurisprudence. In the words of Lord Chief Justice Holt, ‘Inasmuch as the
laws of all nations are doubtless raised out of the ruins of the Civil
Law, as all governments are sprung out of the Roman Empire, it must be
owned that the principles of our law are borrowed from the Civil Law,
and therefore grounded upon the same reason in many things[240].’ But
the bulk of English law is so vast, requiring so much labour to master
it, and that which it has borrowed from other systems is now so
thoroughly transformed and Anglicized, that one cannot honestly advise
the student, on the mere ground that in some departments it has drawn
freely from Roman sources, to spend time in examining those sources,
instead of going straight to English text-books. It is not so much
because English law is like Roman, but because it is unlike, that the
study is really to be recommended. Similarities, whatever their
historical origin, are usually found to rest on that wish to follow
reason and to secure what is practically convenient, which have moulded
the rules of all highly finished systems. They need no further
explanation. But dissimilarities suggest difficulties. Inquiry is
provoked; reflection is stimulated; ideas emerge which may prove
fruitful.
-----
Footnote 240:
12 Mod. 482.
-----
A lawyer who loves and appreciates his subject will hardly be content
without knowing something of the rules and doctrines which prevail in
other nations; and a man in brisk practice will find many occasions in
which a knowledge of foreign or colonial law is of great value to him.
Now in the acquisition of almost any foreign system of law, a knowledge
of the outlines of the Civil Law renders the same kind of service which
a knowledge of Latin renders in the acquisition of one of the Romance
languages; and just as one would advise a man who desired to learn
French Spanish and Italian to begin by learning Latin, so the shortest
way to know something of German Dutch and French law is to study the
principles of the Civil Law, which are a master-key to that of all these
countries. The House of Lords in Scotch appeal cases, the Privy Council
in appeals from many of our colonies, as, for instance, from Lower
Canada, British Guiana, the Cape, and Mauritius, administer a modified
Roman law. And as the doctrines of international law are in their source
Roman, they can be best understood and applied by one who is familiar
with them in their original form as drawn from that imperial law which,
when they first sprang up, was still dimly conceived of as extending its
authority over all the states of Christendom.
I have placed last what I venture to believe to be the weightiest
practical reason for pursuing this study, although, at the same time,
that reason which it is most difficult to expound and establish—its
educational and scientific worth as forming and strengthening those
habits of mind in the possession of which a lawyer’s excellence
consists. In proof of this worth it is not sufficient to cite the
examples of Germany, France, and Scotland, where the education of a
legal practitioner is based upon the civil law; for the Corpus Juris is
in all these countries the foundation of their municipal systems, while
in Scotland and some parts of Germany, it is to some extent actually
still in force. The reason which we in England have for urging that the
study of Roman law should precede and accompany that of the law of our
own country, must be sought in a perception of the defects, certainly
obvious enough, of modern English jurisprudence. Here it is necessary to
distinguish what laymen, and even lawyers, have often confounded—defects
of substance and defects of form. Now, in point of substance, the
English law is, with the exception of certain provisions of the law of
real property, and of the law relating to married women—provisions which
the progress of political change seems likely to remove—no whit inferior
to any other body of law; almost always fair and reasonable, conformed
to the dictates of good sense, reflecting worthily the free and flexible
spirit of our political institutions, and offering as few opportunities
as may be to fraud and oppression. Its processes are of course
technical, perhaps still too technical, and they are sometimes
needlessly circuitous[241]; but, as a technical hardship may usually be
met by a technical remedy, substantial justice seldom fails to be
attained. With some cumbrousness, our procedure has the merit of variety
and flexibility; and it is our especial honour to have worked out the
method of trial by jury with a completeness unrivalled elsewhere, and to
have alone (for in this, as in many other respects, Americans may
practically be reckoned as Englishmen) succeeded in applying it to large
classes of civil causes. But when English law is regarded in its formal
and scientific aspect, as a system, the opinion formed of it must be
very different. It is, in fact, not so much a system as a huge mass of
isolated positive rules; some laid down, with little statement of a
reason, for the sake of meeting a particular case; some deduced by the
judges, though in a rather occasional and fragmentary way, from
principles which were at first dimly and incompletely apprehended; some,
again, created by statutes which have, especially of late years, cut
across these pre-existing principles and rules in an irregular and
reckless way. Just as lines of railway have been driven through modern
London without regard to the old arrangement of the thoroughfares, and
have crossed and recrossed streets and squares, effacing parts of them
till perhaps only a house or two is left standing, so Acts of
Parliament, drawn up to meet the exigency of the moment, have paid no
respect to the symmetry, such as it was, of the common law, and, instead
of attempting to mould and reconstruct it, have laid down new positive
rules which infringe upon, or almost wholly destroy, its ancient
principles, by removing from their operation large and heterogeneous
classes of cases. The effect of this has been to make the old principle
no longer really a principle, but a positive rule in the cases not
affected by the statute; and thus, as the number of enactments and
positive rules increases, the value of principles declines, and the
confusion grows every year worse confounded. So it comes, owing partly
to the way they have been produced, and partly to the way they have been
amended, that the rules of our law are an aggregate of dicta on points
of detail—dicta which with difficulty can be reduced to a reasonable
number of leading doctrines. For not only do the exceptions to a rule
frequently outnumber the cases which it governs, but it often happens
that judicial decisions, or the words of an Act, have provided for many
cases which naturally fall under and suggest a general principle, but
have never ventured to enunciate the principle itself, which cannot
therefore be laid down as being part of the binding law. Hence the
tendency of an English practitioner is by no means towards a search for
principles: indeed, he becomes absolutely averse to them; and the
characteristic type of excellence which the profession has delighted to
honour is the so-called ‘case lawyer,’ who bears in his memory a great
stock of particular decisions, from which he can, as occasions arise,
select that one whose facts most nearly approach the individual case
upon which he is required to argue or advise. Such a practitioner may
acquire a sort of instinct which will usually keep him right, but may be
unable to state the general doctrines on which the solution of a class
of cases depends.
-----
Footnote 241:
This defect was removed by the Judicature Act of 1873.
-----
The strain thus imposed on the memory is such that many persons succeed
in mastering only some special department of the law; and even our most
eminent counsel, men of the greatest powers of mind, may be heard to
confess that they do not pretend to know our law as a whole, but must
rest content with knowing where to find what they want as they may
happen to want it. For the same reason our text-books are, with few
exceptions, not systematic expositions of law, but mere heaps of cases
from which, by the aid of an index, the practitioner must try to pick
out a few resembling, or, as lawyers say, ‘on all-fours with,’ that set
of circumstances whose legal character he is called upon to determine.
They are, therefore, unfit to be put into the hands of a beginner.
The result of all this is to make the process of learning English law
very slow and somewhat distasteful. Certain persons indeed there are
who, having no feeling for symmetry, are willing to pick up their
knowledge by scraps and morsels, and who, so to speak, roll themselves
about in cases in the hope that bits of legal knowledge will stick. But
minds of finer temper, minds trained by their University studies to ask
for a reason, seek out a principle, group things together under their
natural relations, are disheartened by this chaotic state of matters,
make slow progress in the study, find themselves required to unlearn
their best mental habits, and sometimes abandon the profession in
disgust. I remember having been told by a very distinguished and able
member of this University[242], that when he began to read in a
conveyancer’s chambers he found his previous classical and philosophical
training, so far from helping him, prove a positive hindrance and
stumbling-block. This was seen to be an evil so long ago as Sir William
Blackstone’s time. In his introductory lecture as Vinerian Professor,
delivered here in A.D. 1758, he says:—
‘We may appeal to the experience of every sensible lawyer whether
anything can be more hazardous or discouraging than the usual entrance
on the study of the law. A raw and unexperienced youth, in the most
dangerous season of life, is transplanted on a sudden into the midst
of allurements to pleasure, without any restraint or check but what
his own prudence can suggest; with no public direction in what course
to pursue his inquiries; no private assistance to remove the
distresses and difficulties which will always embarrass a beginner. In
this situation he is expected to sequester himself from the world, and
by a tedious lonely process to extract the theory of law from a mass
of undigested learning; or else, by an assiduous attendance on the
courts, to pick up theory and practice together, sufficient to qualify
him for the ordinary run of business. How little, therefore, is it to
be wondered at, when we hear of so frequent miscarriages; that so many
gentlemen of bright imaginations grow weary of so unpromising a
search, and addict themselves wholly to amusements, or other less
innocent pursuits; and that so many persons of moderate capacity
confuse themselves at first setting out, and continue ever dark and
puzzled during the remainder of their lives.
‘The evident want of some assistance in the rudiments of legal
knowledge has given birth to a practice which, if ever it had grown to
be general, must have proved of extremely pernicious consequence. I
mean the custom, by some so very warmly recommended, of dropping all
liberal education, as of no use to students in the law, and placing
them in its stead at the desk of some skilful attorney, in order to
initiate them early in all the depths of practice, and render them
more dexterous in the mechanical part of business. A lawyer thus
educated to the bar will find that he has begun at the wrong end. If
practice be the whole he is taught, practice must also be the whole he
will ever know; if he be uninstructed in the elements and first
principles upon which the rule of practice is founded, the least
variation from established precedents will totally distract and
bewilder him: _ita lex scripta est_ is the utmost his knowledge will
arrive at; he must never aspire to prove, and seldom expect to
comprehend, any arguments drawn _a priori_ from the spirit of the laws
and the natural foundations of justice[243].’
-----
Footnote 242:
Now (1901) one of the Law Lords sitting in the House of Lords.
Footnote 243:
Although it is the custom of placing a youth (untrained in theory) in
an attorney’s office to learn practice which Blackstone is here
condemning, the spirit of his concluding remarks is almost equally
applicable to the present usage of entering a conveyancer’s or
pleader’s chambers before one has gained any systematic knowledge (or
indeed any knowledge whatever) of the law.
-----
Blackstone is here founding, on the unfortunate results of the usage of
his own time, an argument for making the future barrister begin with a
systematic theoretical study of English law. His reasoning will be
generally felt to be sound, but it does not exclude the further
improvement of giving the learner some knowledge of the principles of
Roman law before he addresses himself to English. I shall state some
grounds for thinking that what might appear the longest way round,
through Roman law, may really be the shortest way to the scientific
mastery of our own.
It is clear that no knowledge of the Roman system can be a
substitute for a knowledge of the English; but the difficulties
which the English presents to a beginner are such as to suggest
the utility of a preliminary legal training which may render it
more comprehensible and less distasteful. Now, the conspicuous
merit of Roman law is, that it is clear and intelligible. It is a
system instead of a mere congeries of rules and dicta, a system
which, although it cannot be exhausted by the labour of a powerful
intellect during a long life, may be mastered in its outline and
leading principles in six or eight months of properly-directed
industry. A philosophical mind is attracted by its symmetry; the
taste is pleased by the graceful propriety of its diction; the
learner’s interest is kept awake by watching the skill and
subtlety wherewith its technical rules are manipulated and kept in
harmony with the dictates of equity and common sense. The number
of dominant conceptions which it is necessary to acquire is so
small, and these conceptions themselves so rational and, so to
speak, natural, that it does not take long to obtain a general
view of the whole, and discern the harmonious relation of its
parts. The student finds the ethical and historical knowledge he
has already acquired serviceable in this new field. He learns to
regard law as a science, closely related to ethics, and to be
dealt with in a philosophical spirit. And thus, when he passes on
to the study of our English law, he finds himself the better able
to grapple with its bulk and its want of arrangement, since he has
already mastered the leading conceptions of jurisprudence in their
concrete (which is, after all, their only serviceable) form, and
knows how to arrange under appropriate heads the positive rules
which it will be his business to remember and apply. So valuable
is this experience, that I dare affirm that a youth who spends
some eight months in the study of the Civil Law, and then proceeds
to that of English law, will, when at the end of three years he is
measured against his contemporary who has given exactly the same
amount of time and pains to English law alone, prove to be not
only a better jurist, but as good an English lawyer. This is the
rather so, as that part of English law which the Roman law least
helps to elucidate is now of much slighter importance than
formerly—I mean the feudal law of land. A change has passed upon
us, somewhat similar to that which Cicero saw passing at Rome. In
his youth, he tells us, he like other pupils of the great
_prudentes_ was required to learn by heart the contents of the
Twelve Tables, whereas in his later days it was the Praetor’s
edict that formed the basis of legal training. So Coke upon
Littleton, which thirty years ago was held forth as a sort of
Bible to the unfledged lawyer, is now seldom in his hands; his
time is given rather to commercial law and to the doctrine of
trusts and powers, and the principles governing incorporated
companies and the relations of directors to intending investors
and to shareholders—subjects to which the leading principles of
the Roman law are more capable of being profitably applied.
It is not, however, merely as an introduction to his professional
studies that the English lawyer will find the study of Roman law
profitable: if rightly used it will be a guide and a help throughout his
whole career. More than anything else, it will deliver him from the
tendency to deal with law in a desultory method and an empirical spirit,
by displaying to him fixed and general principles underlying the
multitude of details. It will do for him what the knowledge of some
foreign language does for the grammarian and the logician, in the way of
freeing him from that bondage of words to which most men are all their
lives subject. Setting him to compare the terms and conceptions of
another law with those of his own, it will enable him to criticize the
latter from an independent point of view, and so deliver him from the
danger, common in all professions and to all systems, of mistaking the
accidental for the essential, of exalting mere technical rules and
phrases into necessary and permanent distinctions. Further, it may do
much to supply, from its choice and abundant stores, the defects in
English legal terminology. We are especially ill provided with terms
fitted to convey the main conceptions of universal jurisprudence; and we
find the want a serious impediment, not only to legal exposition and the
conduct of legal argument, but also, as has been remarked by a
distinguished jurist, now one of the ornaments of this University[244],
in the work of practical legislation. The terminology of the Romans was
exact as well as copious; and it has been greatly amplified and improved
by the labours of modern civilians. As it is, we often draw upon the
Roman vocabulary, but what we borrow we are apt to use loosely, and in a
sense different from that of the old Romans or of their modern
commentators; whence further confusion.
-----
Footnote 244:
Sir H. S. Maine.
-----