excellence of a legal intellect chiefly consists—the power of applying
general principles to concrete cases, and the power of enunciating a
legal proposition with clearness and precision. Towards the formation
of both of these the writings of the Roman jurists supply more aid
than do those of their modern English rivals. The conspicuous merit of
the Roman lawyer was his command of principles, and the skill with
which he manipulated the rules of an originally very technical system,
so as, without any loss of consistency or ‘elegance’ to avoid the
inconveniences which an adherence to technical strictness must often
produce. As Savigny puts it, ‘In our science, all results depend on
the possession of leading principles, and it is precisely upon this
possession that the greatness of the Roman jurists is based. The
conceptions and maxims of their science appear to them not as if
created by their own will; they are actual beings, with whose
existence and genealogy they have become acquainted from long and
familiar intercourse. Hence their whole course of proceeding has a
certainty which is found nowhere else out of mathematics, and it is no
exaggeration to say that they calculate with their ideas. This method
is nowise the exclusive property of one or a few great authors: rather
is it the common inheritance of all; and although the power of
applying it is divided among them in very unequal measure, still the
method itself is in all of them the same.... If they have a case to
decide upon, they set out from the most vivid perception of it, and we
see before our eyes the origin and development of the whole affair in
all its phases. It is as if this particular case was the
starting-point whence the whole science was to be explored. Hence with
them theory and practice are really not distinct; their theory is so
thoroughly worked out as to be fit for immediate application, and
their practice is uniformly ennobled by scientific treatment. In every
principle they see an instance of its application; in every case, the
rule whereby it is determined: and in the facility with which they
pass from the universal to the particular, and the particular to the
universal, their mastery is incontestable[245].’
-----
Footnote 245:
_Vom Beruf unserer Zeit für die Gesetzgebung und Rechtswissenschaft_,
c. 4.
-----
Now every legal opinion, argument, and judgment chiefly turns on the
application of known principles or rules of law to facts; and this
either by way of fitting the law to the facts—that is, of expounding the
nature, meaning, and limits of a principle in such wise as to make it
appear to cover the facts proved; or conversely by way of fitting the
facts to the law, that is to say, of setting forth the rule or
principle, as admitted, and then of so stating the substantial result of
the facts taken as a whole, as to make it appear that the case falls
under this rule as already given. In this process the Roman jurists
shone preeminent. English judges, certainly from no want of learning or
acumen, but rather from a sort of caution, or from a traditional
reluctance to deliver an opinion going any further than may be
necessary, have generally been unwilling to formulate principles,
preferring, where they could, to dilate on the special circumstances of
the case, and base their decision thereon; and the consequence is to be
seen in the prolixity of our Reports, and the uncertainty of much of the
law contained in them. The labour of reading English cases is great in
proportion to the quantity of positive law they embody; and their
philosophical worth not commensurate with the genius and industry
bestowed upon them by both bar and bench. The cases, if one may so call
them, which we find in the Roman jurists give more law and more real
intellectual training in a much smaller compass. They are often
imaginary, invented to show the application of a rule, and are therefore
short and clear, enforcing their principle with a directness which makes
it easily apprehended and remembered. In reading them we seem to learn
better than anywhere else how principles should be dealt with.
In the matter of legal expression the superiority of the Romans is
scarcely less marked. The power of stating a proposition of law in
comprehensive and exact terms, wide enough to cover all cases
contemplated and yet precise enough to exclude cases more or less
similar to which the rule is not intended to apply, is valuable to the
text-writer and quite indispensable to the framer of statutes.
Unfortunately it is one of which our statute-book bears few traces. Now
the legal language of the Romans is a model of terseness, perspicuity,
and precision, and from a study of it, even allowing for the difference
between the structure of the two languages, the English draftsman may
derive many valuable suggestions.
Over and above the specific benefits enumerated, it must be added that a
study of the Roman law would not merely tend to produce, but must
necessarily precede, any extended healthy intercourse between our
jurists and those of the rest of Europe, any participation by us in the
general advancement of juridical science. ‘England,’ said an eminent
continental jurist, surveying the progress made in his department,
‘England sleeps for ever’: and she sleeps because her lawyers have
allowed themselves to become as completely isolated as though we were
living in and legislating for a planet of our own. Certainly, when one
remembers how in other branches of inquiry each country depends upon its
neighbours, how meagre would be our scholarship, our ethics, our
history, our criticism—never to speak of medicine and the whole circle
of the sciences of nature—if in each of these subjects we trusted to our
own efforts only—it does seem strange that in the matter of law we
should be content to draw nothing from the labours of other nations. As
the facts law deals with are in the main the same in all civilized
countries, and the substance of its leading conceptions virtually
identical, there must clearly be much for us to learn from other highly
cultivated systems, and it is only our ignorance of the common legal
vocabulary of Europe that keeps us from so learning. The habit, however,
has grown so strong that we do not even care to profit by the experience
of a country which speaks our own legal language—the United States—where
many problems have been handled by the Courts and many experiments have
been tried by the legislatures which are full of instruction for
us[246].
-----
Footnote 246:
Cases decided in the United States are more frequently cited in
English Courts now (1901) than they were in 1871.
-----
This argument, being directed to show that the study of the Civil Law
will help to make English law more of a system and a science than it is
now, and to train the individual lawyer in more philosophical habits of
mind, proceeds upon the assumption that law ought to be a science and
lawyers philosophical. To prove the truth of this assumption would
involve a discussion of the relations of theory and practice generally;
and in a University, at least, no such proof will be demanded. Science,
like wisdom, is justified of all her children; and those who, in the
teeth of what we have seen during the last eight months[247], persist in
holding theory to be a hindrance to practice, would, quite consistently,
refuse to be convinced by any such general considerations as those which
determine academical opinion. Without entering, however, on this higher
ground, I may be permitted to mention two practical reasons for desiring
to see our law treated as an organic and harmonized system of rules. One
of these is the direct gain which the whole community would derive from
a simplification of its form. Owing to the way in which English statutes
are drawn, nearly every amendment of the law makes it more complicated
and obscure than it was before. A new Act seldom repeals a preceding Act
or Acts on the same subject as a whole: it abolishes some of their
provisions, incorporates others, and modifies the rest. In dealing with
a rule of the common law, instead of expunging the rule altogether, or
laying down a new principle by which it is to be controlled, it usually
establishes a series of exceptions in a manner so seemingly arbitrary as
to make it very difficult to determine, when a new case arises, whether
or no it was within the contemplation of the Act. The Married Women’s
Property Act of last session is an instance in point[248]. Similarly,
vast branches of our law, such as that which relates to public health
and to the regulation of mines and manufactures, are suffered to remain
in a state of hopeless confusion—Acts fringed with decisions piled upon
other Acts and their decisions, till it becomes impossible, without a
long and painful research, to say what is law and what is not[249]. This
wretched state of things, which makes a resort to the Courts far more
costly, and its issue far more uncertain than it need be, though partly
due to existing parliamentary arrangements, is also in great measure due
to the want of that feeling for the symmetry and simplicity of the law
which a scientific conception of it would be certain to produce in the
profession. The public, which feels the evil, is powerless to remedy it;
while those members of the profession who have the power are deterred
from the necessary efforts, not, as is commonly supposed, by the mean
notion that it is their interest to keep their art a mystery, but partly
by long habit, which has made them indifferent to the beauty of order,
partly by the want of that scientific training on which the success of
amending legislation depends.
-----
Footnote 247:
The reference was to the war, just ending when this lecture was
delivered, between Germany and France.
Footnote 248:
This Act caused so much trouble that it had to be amended and the law
recast by the Married Women’s Property Act of 1876.
Footnote 249:
A marked improvement has, however, taken place since the establishment
of the office of the Parliamentary Counsel a few years ago. Many
Bills, however, including all those brought in by private members, do
not pass through this office, and even those which come from it suffer
in point of form in their passage through Parliament. Since 1871, much
has been done in the way of consolidating the Statute law. See Essay
XIV, _ante_.
-----
The second benefit is the reflex effect upon the legal profession of a
higher conception of the studies to which it devotes its labours. The
complaint is often heard that men of literary culture and polished taste
rise more seldom than formerly to the highest places at the bar and on
the bench; that it is now private connexions rather than the finer gifts
of intellect and character which open the path to professional success.
If this be so, it is surely in great measure because our system of legal
education gives too little scope to these nobler qualities, and turns
them to no account in directing the studies of the aspirant. The life of
a lawyer, tedious and distasteful in some of its details, would be more
enjoyable if his occupation called out, as it ought to do, the highest
faculties of his mind; and the tone of the profession, which will sooner
or later be threatened here by the temptations which have begun to
threaten it elsewhere[250], will be best maintained in purity by a sense
of the dignity of the subject it deals with as a department of
philosophical inquiry. It is scarcely possible that a corrupt
administration of justice can coexist with an enthusiasm for the
abstract propriety and elegance of law as a science, such as existed
among the great jurists of Rome.
-----
Footnote 250:
The reference was to the scandals which had recently arisen in some of
the State Courts in the United States. These have now (1901) been
almost entirely removed.
-----
I am sensible that in this enumeration of the advantages of the study we
have been considering, I may probably be falling into the common error
of those who having a theme allotted them, try to bring more out of it
than there is in it. To correct such a mistake, let it be frankly
admitted that Roman law, though indispensable to the philosophical
jurist, is not so to the practitioner; and that no knowledge of it can
make up to him for the neglect of his own law. Let it also be conceded
that it is not a subject ever likely to hold a front rank among those
which awaken the ardour of our academic youth. It wants that charm of
incompleteness, of unexhausted possibilities of discovery, which
fascinates us in the sciences of nature. It does not, like metaphysics,
set us face to face with the most stimulating problems of thought and
life; nor can it, like history, dazzle the imagination and stir the
emotions, by leading us through a long gallery of striking scenes and
characters. Yet the study is one which pleases and satisfies as well as
instructs; for it is at once, and that in the healthiest way,
theoretical and practical, excellently philosophical in its methods, yet
never quitting the firm ground of reality. Its materials are contained
in the writings of men, the purity and loftiness of whose ethical tone
were scarcely surpassed by the brilliance of their constructive genius.
It is perhaps the most perfect example which the range of human effort
presents of the application of a body of abstract principles to the
complex facts of life and society. To quote once more from the most
famous of modern jurists:—‘The study of Law,’ says Savigny, ‘is of its
very nature exposed to a double danger: that of soaring through theory
unto the empty abstractions of a fancied law of nature, and that of
sinking through practice into a soulless unsatisfying handicraft. Roman
law, if we use it aright, provides a certain remedy against both
dangers. It holds us fast upon the ground of a living reality; it binds
our juristic thought on the one side to a magnificent past, on the
other, to the legal life of existing foreign nations, with whom we are
thereby brought into a connexion wholesome both for them and for
ourselves[251].’
-----
Footnote 251:
Preface to vol. iii. of the _System des heutigen römischen Rechts_.
-----
Standing midway between those classical and historical studies which
belong to a general liberal education, and those purely professional
studies which form the first stage of active life, it is especially
fitted to lead men from the one to the other, and show them how to turn
to account in the latter the ideas and capacities which the former has
given them. But although this is a strong reason why the University of
Oxford should undertake to recognize and promote the study, it is not
the only or the chief reason. Even more important than the function of
an University in education, is the scarcely separable function of
dealing with every department of human activity in the abstract,
investigating its principles and developing its rules in their
philosophical coherence. We are all too apt, in the hurry of life and
the pressure of its trivial necessities, to lose sight of that which is
universal and permanent—to forget that what we are pursuing as a trade
is the subject of a science, and has, as such, its greatness and its
perfectibility. The ideal is not far from us, but we catch only
transient glimpses of it; and of those who continue in maturer life to
cherish the belief in its worth, the most conceive of it in relation to
their inner life only, and look on their action in the world without as
something which belongs to another and a meaner sphere. The University
is appointed to correct this failing—to link the present, in which
things seem petty, to the past which clothes them with a mellower
light—to ennoble practice by a constant recurrence to theory—to show
that intellectually as well as ethically there is nothing common or
vulgar, nothing which may not and ought not to be considered as within
the domain of Philosophy, who, the more perfect she becomes, sees more
clearly that which is great in that which is the least. In undertaking,
therefore, not only to educate in the ordinary liberal studies, but also
to deal in a broad and lofty spirit with such large practical topics as
this of law, the English Universities will in a new way justify their
possession of that wealth and external splendour which they alone out of
the great mediaeval sisterhood have been privileged to retain. They will
associate themselves more closely with the life of the nation, and
confirm the reverence with which it still regards them; nor is it idle
to add that in thus enlarging the scope of their activity, they will be
closely following and worthily maintaining the traditions of their
glorious past.
XVIII
_VALEDICTORY LECTURE_[252]
LEGAL STUDIES IN
THE UNIVERSITY OF OXFORD
Twenty-three years have passed since I entered on the duties of the
Chair of Civil Law in this University: and to-day, in obedience to
precedents of high authority, I come to say some parting words suggested
by the experience of those years. They have been years full of
experience for us all: and it may be not unprofitable that I should note
the changes they have brought and endeavour to estimate the position
which legal studies, and especially the study of the Civil Law, have now
reached in the University and in the country.
Those changes have been many and momentous. Since 1870 the University
has nearly doubled the number of its undergraduates and has greatly
increased the number of its teachers. It draws students much more
largely from the less wealthy classes of the people. A new college has
been founded, and risen to prosperity: an old one has been refounded and
enlarged. Two colleges for women have sprung up and taken firm root.
Theological tests have been abolished: persons not belonging to the
Church of England as by law established have begun to resort freely to
Oxford: two theological faculties belonging to unestablished religious
bodies have come to dwell in her midst, and have received a courteous
welcome. Nor have any of the unfortunate consequences predicted as
likely to follow from the admission of Nonconformists been actually
experienced, for there has been a diminution of theological controversy,
a growing sense of friendliness and sympathy among Christians, a more
assured peace in the minds of our students.
-----
Footnote 252:
Delivered on resigning the Regius Professorship of Civil Law at
Oxford, June 10, 1893.
-----
The examination system has been remodelled, with a regrettable but
perhaps inevitable increase of complexity, as well as enlarged by the
inclusion of new studies. The University and the Colleges have been
dealt with by Parliament and by an Executive Commission: and the serious
consequent evils have been not wholly uncompensated by gains. Oxford has
undertaken many new kinds of work. She provides University Examinations
for Women, and sends zealous young lecturers everywhere through England
to bring teaching of an academic type within the reach of the people.
As regards Law, while the degree of Doctor of Civil Law has become a
true distinction by the requirement of a thesis of substantial merit
instead of the former purely formal exercise, the B.C.L. examination
(theretofore scarcely serious) was made by a statute of 1872 a reality:
the standard both of honours and of the pass degree has steadily risen,
and this rise has been accompanied by an increase of candidates. That
examination is probably now, I do not say the most severe test of legal
attainments, but the best arranged and most practically useful law
examination in England. In the years preceding 1870 there were seldom
more than two or three entrants for this examination, almost absurdly
easy as it then was. There are now usually upwards of twenty and
sometimes twenty-five. Similarly the number of candidates in the School
of Jurisprudence, by which candidates can obtain the degree of B.A., has
grown and the quality of the work has improved.
In 1868 there were only three Chairs in the Faculty of Law: those of
Civil Law, Common Law, and International Law, besides the temporary
Vinerian Readership; and of these that of Common Law was virtually in
abeyance. In 1870 the work of the Corpus Professorship of Jurisprudence
began with the lectures of an illustrious writer whose fame two
Universities dispute, for if Cambridge reared him, Oxford gave him the
occasion for teaching, Sir Henry Maine. In 1878 the Readership in Indian
Law, and in 1881 that in Roman Law, was founded and the opportunity
taken of placing in it the zeal and learning of a German civilian—Dr.
Erwin Grueber—whose lectures have proved most helpful. In 1882 the
Vinerian Chair of Common Law became (as we trust it will ever continue)
a working chair by the choice of another distinguished man whose powers,
always admired by his friends, are now recognized over the
English-speaking world, and to whom belongs the rare honour of having
devoted those powers to the service of his political allies in a great
and burning controversy without impairing the respect which all parties
feel for the depth and soundness of his constitutional lore.
Thus there are now seven working professorships: and to these we must
add, in estimating the teaching force which the University possesses,
the lectures of another distinguished writer who may be reckoned as
virtually a law professor—the Warden of All Souls: and of more than ten
College lecturers, who serve the University as well as their respective
Colleges, with recognized efficiency.
Thus, upon a review of recent years, we may say that as the whole
University has grown and expanded, so has also this side of her
activity, and that which was once a dry riverbed, or presented, like a
South African river, only a few scattered pools of stagnant water, has
now become a wide and fertilizing stream.
That serious deficiencies exist I am well aware: I shall presently
advert to them and to the steps that may be taken to remove them. For
the moment, however, I am noting progress actually made and gains
actually secured. Among these may be reckoned the assured position which
the study of the Roman Law now enjoys.
Though this was the first subject recorded to have been taught in
Oxford, for one of the earliest notices of the University is to be found
in the sentence ‘Magister Vacarius in Oxenefordia legem (_sc._ Romanam)
docuit,’ and though from his time (the reign of King Stephen) down till
the seventeenth century it held a rank second only to that of theology,
it had within the last hundred years virtually died out of the
University, and this chair, founded by King Henry VIII in 1546, and
occupied in the time of King James I by Alberico Gentili, had become a
sinecure. A few law degrees no doubt continued to be given, but they
carried no evidence of knowledge. The revival begins with the
substitution in 1852 of an examination (albeit a very slight one) for
the old formal exercises for the degree of B.C.L., and the creation in
1853 of the Law and Modern History School (in which the Institutes of
Justinian were made a subject of examination). That School was in 1872
divided into the present two Schools of Modern History and of Law, in
the latter of which Roman Law received a more important place. Till
1870, however, there was scarcely any teaching, and what little did
exist in the colleges was confined to commenting upon the solitary book
required for the examination. No one had lectured on the Digest; no one
had treated the history of the subject. This was part of that remarkable
isolation of England from the general current of European legal thought
and practice which was due partly to the resistance to the encroachments
of the Canon Law, first of the barons in the thirteenth century, and
again of the Parliament under Richard II, partly to the great religious
breach of the sixteenth century, an isolation once politically
fortunate, for it helped to develop the free spirit of the common law,
but in our days, when the old dangers have vanished, a circumstance to
be regretted and removed. Among the modes of removing it, the study of
the Civil Law is not the least important. That study may now be deemed
to have struck here in Oxford deep and tenacious roots. Both in our
examinations and in our teaching it holds a place equal in dignity to
English Law, though doubtless of narrower compass. It attracts in fully
as large a measure the interest of the more intelligent among our
students, and it can hardly be doubted that the excellence of the Law
School in the future will largely depend upon its maintenance as a main
element in both teaching and examination.
Its practical utility to the English lawyer is one of the points on
which you may expect the results of my experience to be stated; for it
is a point upon which attention must be constantly fixed, and I have had
opportunities of studying it amid the din and dust of forensic practice
in London no less than in the cloistered seclusion of Oxford.