made to treat this subject. It was there pointed out that the utilities
of the Civil Law to Englishmen might be reduced to three heads. One was
its connexion with the main stream of the world’s history from the time
of Pyrrhus, the first formidable antagonist from non-Italian soil whom
Rome overthrew, to that of Muhamad, by whose first successors the East
was torn from her grasp; and its influence, less conspicuous, but still
considerable, upon the growth of opinion and the development of
institutions ever since. This is an aspect of the subject which, since
it belongs rather to the historian than the lawyer, I shall not pursue
further to-day, though subsequent reflection leads me to believe that
its importance can hardly be overrated. The second utility was to be
found in the fact that Roman Law is the substratum of some branches of
English Law, directly of the law administered in the Probate and
Admiralty Division of the High Court of Justice, and indirectly of a
good deal administered in the Chancery Division, in the further fact
that it is the actual law of some of our colonies from which appeals
come to the Privy Council, as well as the foundation of the law of
Scotland whence appeals come to the House of Lords, and in the command
which it gives of the law of modern continental Europe, since it is the
basis of the systems that prevail in all those countries, and its
knowledge is a sort of master-key to each and every of them. These
circumstances—so I then argued—make it practically serviceable to the
practitioner, and justify a man bent on professional success in devoting
some time to its study. The third utility was to be found in its
educational value, as forming the mind and training the aptitudes of the
student devoting himself either to the theory or the practice of English
Law. On these latter two of the above-mentioned three points it is
proper to say a few words.
An observation extending over twenty-two years leads me to lay less
weight than I laid in 1871 on the direct professional gain, in the way
of securing practice at the bar, to be expected from a knowledge of
Roman Law. Sometimes no doubt a man may find such knowledge directly
helpful in writing opinions (especially if points of Scotch or French or
German or Roman Dutch law arise), or in arguing before a Court. Once in
addressing the House of Lords in a Scotch Appeal I discovered a pretext
for quoting the Digest, which that august body received with grave
approval, as not unbefitting the large survey they are wont to take of
every matter that comes before them. But instances of this kind are rare
in ordinary practice. It would be unbecoming to dilate upon this aspect
of the question, for a University is the last place in which the worth
of knowledge ought to be measured by its merely gainful utility, or
where our studious youth ought to be led to set their hearts upon
immediate practical success. Still, if one is asked to deal with the
point upon a hard utilitarian basis, I cannot allege that the advantage
to be expected from the possession of this acquirement does much more
than counterbalance the impression which still prevails in the ‘other
branch of the profession,’ that it is a little uncanny for a barrister
to be known for anything except his knowledge of the English Law. Things
might fall out differently for the young civilian to whom a judicious
firm of solicitors vouchsafed a chance of getting into Canadian Appeal
business or Admiralty business. But in such a world as the present, and
more particularly at the bar, one cannot await chances or shape one’s
course with a view to them; one must seize those that come and float
onwards with the tide. The ambitious junior may desire to be employed in
subtle questions of insurance or company law, but if briefs are offered
him at the Old Bailey or even in the Divorce Court, he will probably
deem it wise to accept them, and to wait till his position is assured
before he begins to pick and choose among the business which clients
send. In the long run, no doubt, a man who knows Roman Law will find
many cases in which, when he has attained a front rank in the
profession, he can profit by that knowledge. But the main thing for the
practitioner is to get a start; and it is not certain that any one will
get this start sooner by being as good a civilian as Oxford can make
him.
This may be deemed a somewhat sordid aspect of the matter; so let me
hasten to correct any possible misapprehension by adding that as
respects the third head of utility—that of the benefit to a student’s
mind which training in Roman Law gives, I can dwell upon it with a
confidence deepened by the experience of every year. Far be it from me
to disparage the law of England as it was disparaged by the eager
reformers of seventy or even of fifty years ago, impatient of the
defects, many of them removed since their days, which then marred its
noble proportions. It is a system worthy of all admiration for its
humane spirit, for the sense of civic equality and personal freedom
which pervades it, for its elastic power of adapting its provisions to
the needs of the great communities that live by it, not here only but
beyond the Atlantic and beneath the Southern Cross. Its faults lie not
in its substance but in the form which the historical conditions of its
growth have given to it. It is a system extremely hard to expound and
hard to master. So vast is it and so complicated, so much are its
leading principles obscured by the way in which they have been stated,
scattered here and there through cases reported in a chronological
order, which is the perfection of disorder, so much have many of its
main doctrines been cut across and (so to speak) dislocated by modern
Statutes, that it presents itself to the learner as a most arduous
study, a study indeed which only a few carry so far as to make
themselves masters of the whole body of our working rules. Roman Law, on
the other hand, is not only simpler, since it wants those differences
between real and personal property, and between legal and equitable
rights to which so much of our English complexity is due, but more
limited in its range, large modern departments, like those of company
law and insurance law and negotiable instruments, being absent. It is
therefore a subject the whole of which the student can more easily bring
under his eye, seeing the various parts in their relation to one
another. What is of still higher import, the Roman Law is symmetrical
and coherent. Each part not only has, but displays, its organic relation
with every other part. The original sources in which we possess it are
of moderate bulk, not larger than the English Law Reports of the last
four or five years, and not a two-hundredth part of the total volume of
our Reports.
Less than one-fourth of these writings is now of practical consequence,
for the remainder, though interesting historically, deal with matters
not significant to the modern lawyer. But the fraction which still
concerns us is of the highest possible merit. In it one may find
something of value upon almost every principle and general legal
doctrine with which a jurist has to deal. The legal conceptions set
forth are those upon which all subsequent law has been based; and nearly
all of them find their place in our own system, which they have largely
contributed to mould. Two of the Roman text-books deserve special
mention. The Institutes of Gaius is a model of vigorous precision and
lucidity, an elementary treatise to which we have nothing comparable.
The Digest of the Emperor Justinian, containing short extracts from a
number of the most eminent legal writers of earlier times, has excited
the admiration of all succeeding generations by the concise, delicate,
and philosophical way in which principles are set forth and points of
detail investigated. Its contents are philosophical, not in the sense of
being abstract, but in the firm grasp of principles, and the refined
exactitude with which every principle is applied. No rules could better
conform to the three canons of good law, that it should be definite,
self consistent, and delicately adapted to the practical needs of
society. No study can be better fitted to put a fine edge upon the mind,
or to form in it the habit of clear logical thinking.
In England we have nothing similar, and although the study of case law
may be made, and has sometimes been made in the hands of a skilful
teacher (such as Mr. C. C. Langdell, of the Harvard University Law
School), as good a training in subtlety and exactness as the Roman Law
or indeed as the scholastic logic of the Middle Ages, the immense bulk
of our cases makes it difficult to pursue such a method over the whole
field which a learner ought to cover.
‘Nevertheless,’ some one may say, ‘even if the merits claimed for the
Roman system be admitted, it is not our English system, and you are
doubling the learner’s labour. Why should he add to the time and toil
that the study of English Law needs, the time and toil, less though it
be, needed for mastering the Roman? Why attempt both, when one alone is,
on your own showing, so arduous?’
The answer is that the learner will make quite as rapid progress with
English Law if he has begun with Roman as if he proceeds to break his
teeth from the first upon the hard nuts of our own system. Twenty-one
years ago I ventured to say this here and I venture now to repeat it
with fuller confidence. Two men of equal ability and diligence start
together after taking their B.A. degree. One gives a year to Roman Law
and the two next to English. The other devotes to English the whole
three years. At the end of the three years the first will know as much
English Law as the second. He may not have covered so much ground or got
on his tongue the names of so many cases, but he will know what he does
know—nor will it be much less in quantity—more thoroughly and
rationally. The explanation is twofold. In learning Roman Law, one
learns the elements of law in general, and therefore of English Law
also, these elements being more easily learnt from Roman sources, than
they could be in the form they have taken among ourselves. And,
secondly, in learning Roman Law one obtains a means of testing one’s
comprehension of the real meaning of English terms and the nature and
compass of English rules, which deepens and strengthens the learner’s
hold upon his knowledge. The main difficulty which besets students till
they have had a good deal of actual practice is to turn into the
concrete the rules they have learnt in the abstract, or as a Roman
lawyer says, _Leges scire non est verba earum tenere sed vim atque
potestatem_. The study of reported cases is a valuable aid in grasping
the practical application of rules, but cases are complicated by many
details extraneous to the principle. When, however, a man has so
mastered the main outlines of Roman Law as to be familiar with its
conceptions and understand the application of its leading rules, he is
naturally and almost necessarily led in his study of English Law to
compare the conceptions and rules he finds there. His text-book tells
him, for instance, that the English rule regarding the passing of the
ownership of an object sold, is such and such. What is the Roman rule?
If the two rules agree, he remembers the English better. If they vary,
he is led to ask why; and he obtains a juster view of the origin,
bearings, and range of the English rule from perceiving wherein it
differs from the Roman. If any one thinks there is a risk of his
confounding the two, and becoming muddled between them, I can only say
that I have never known this happen, partly, perhaps, because in dealing
with Roman Law one thinks in Latin—a good thing to do—and expresses in
its technical terms the result one arrives at. On the contrary, the
student gets a clearer and sharper view of the grounds of every
doctrine, and of its precise compass, than he could get from studying
either system by itself. It is as when in studying a foreign language
one translates constantly backwards and forwards into one’s own, and
obtains thereby both a finer perception of the idioms of both, and a
more exact comprehension of the substantial meaning of every sentence
that is so translated.
I may be reminded that the advantage here claimed does not apply to all
departments of Roman Law alike, but to those only which cover the same
field as our own Law. The remark is true, and draws with it a practical
lesson. The subject has two aspects. Besides its intrinsic scientific
interest as a vast and harmonious system, it has a historical aspect for
the scholar and the student of institutions: it has a practical or
professional aspect for the lawyer. Different parts of it are especially
interesting to one or other of these classes. Much of the law of
persons, of crimes, and of procedure, while it engages the curiosity of
the scholar or historian, is too remote from modern conditions of life
to attract, or to profit, the jurist of to-day. What he will chiefly
value are the parts that deal with the law of Property, including
Inheritance (though even in this there is a good deal whose interest is
now merely historical) and of Obligations, together with some parts of
the law of persons, such as marriage and guardianship. These are the
parts on which the teacher should here in England expend his efforts,
for it is in these that the comparison with English Law is chiefly
instructive. He should lead the student along a path from which the
parallel territories of English Law are in full view, and carry him
constantly to and fro across the border. So if I may, at the risk of
seeming to transgress a Roman rule, give a legacy to an uncertain
person, I will bequeath to my successor, whoever he may be, this maxim
as the best practical result of my experience—that Roman Law must always
be so taught as to be brought into the closest and most constant
relation with English Law, since it will thereby become not only more
helpful but more enjoyable to both learner and teacher. It ought to be
treated as a practical working system, full of life, not only because it
is preserved to us in lifelike detail, but also because it is still
actually in force as the operative law of some countries, full therefore
of direct instruction and suggestion for ourselves, capable of being
used to enlarge English conceptions or indicate useful modifications of
English rules.
In discoursing on it, if I may in this expiring swan song refer to my
own experience, I have usually passed by what may be called its
antiquarian aspects, not from any want of interest in them, but because
the object of quickening the interest and training the intellect of the
_cupida legum iuventus_ seemed more urgent. It has been rather in the
public lectures delivered from time to time before the University, that
I have endeavoured to develop and illustrate the wider historical
relations of the law of Rome, and to connect it, sometimes in the
letter, sometimes in the spirit, not only with the history of the Empire
and the Church, but also with the problems of abstract jurisprudence,
with political ideas and constitutional forms, with the legal
institutions of peoples remote in time, like the primitive Icelanders,
or dissimilar in race and habits, like the Musulmans of the contemporary
East, with current questions on which Roman experience sheds light, such
as the law of Marriage and Divorce, with the enterprises of modern
law-makers, like the Legislatures of the States of North America or the
rulers of British India. Sometimes these lectures may seem to have
strayed beyond the strict limits of the Chair. I have then fallen back
on the ancient adage _Roma caput mundi regit orbis frena rotundi_, and
have feigned for the Imperial law a continuance of its oecumenical
authority. The Roman law is indeed still worldwide, for it represents
the whilom unity of civilized mankind. There is not a problem of
jurisprudence which it does not touch: there is scarcely a corner of
political science on which its light has not fallen.
In the opportunities for such placing the two systems side by side lies
the one great advantage which English and Anglo-American civilians enjoy
as compared with their continental brethren. To the latter the Roman Law
is the basis—in some countries it may almost be called the modified
substance—of the current law. To us it is a parallel system with which
comparisons can be made. These comparisons are eminently fertile in
elucidation of the past condition of both systems, and in criticism of
their present condition. To no scholars ought the early history of the
Roman Law to be at once so easily comprehensible and so instructive as
to us in England, because the history of our own law is full of
beautiful analogies therewith. So no jurists are better able to estimate
the value of Roman doctrines on many principles of contractual law,
because our system has developed independently, and illustrates the
Roman equally where it differs and where it agrees. We in England cannot
pretend to rival the work which the great Germans of this century, men
like Savigny and Vangerow, Ihering and Windscheid and Mommsen, have done
for the investigation and exposition of Roman jurisprudence and legal
history. But our detached position ought to give us a perspective and a
freshness of critical insight, perhaps even a means of comprehending
things by reading our own experience into them, which continental
scholars sometimes lack; and of that experience, we may trust, due use
will some day be made. For I cannot doubt, looking not only to the
progress of the study in England, but to its rapid and solid growth in
the Universities of America, that the study of the Roman Law, once so
nearly extinct among us, is now destined to shine with a steady light
for generations to come.
I had intended to review, in connexion with the progress of our own law
school, the changes which have passed on the aspects of legal science in
England within the last thirty years. Two among them give cause for
regret, the decline of interest in projects for simplifying and
consolidating the law, and the growing despondency wherewith attempts to
amend our legal procedure are now regarded, a despondency probably due
to the imperfect success which has attended those Judicature Acts from
which so much was hoped twenty years ago. There are few countries in
which so small a proportion of the men engaged in professional work show
an active interest in legal reforms. Against these grounds of
disheartenment I should have set the increasing zest wherewith the
comparative method is being historically applied to the investigation of
the origin of law and of political institutions, and should have dwelt
on the revived study of primitive custom as the foundation of those
institutions, as well as on the more active discussion of constitutional
questions generally, whether foreign, or American, or domestic, and the
vigour which so many of our younger writers show in examining the
ethical and economic bases and grounds of law, with views wider and more
sympathetic, if also more suffused by the moist light of emotion, than
were those which some among us drew from the Utilitarians of the last
generation. But these topics would lead me too far afield; it is for the
present enough to observe two happy changes which we have ourselves
seen—one, the warmer interest which the two ancient Universities display
in the problems that engage the attention of social reformers and the
willingness they show to aid practically in their solution; the other
the much larger share which the jurists and constitutional students, as
well as the economists, of America and the British colonies have come to
take in all these discussions. As our books are known and conned beyond
the ocean, so here we read and prize the most eminent colonial writers;
and we find in an American magazine, the _Political Science Quarterly_,
an excellently conducted organ, such as Britain has not yet been able to
provide, for the discussion in a scientific spirit of a whole class of
constitutional and quasi-political questions. As the isolation of
England from Continental Europe is less marked than it was half a
century ago, so still more conspicuously does the intellectual and moral
unity of the English race dispersed throughout the world stand forth
to-day in a clearer and fuller light.
Let us turn back to consider what still remains to be done to give this
law school, now firmly established in the University, its due hold upon
the legal profession and its due opportunities of promoting the progress
of legal science. None of us can be blind to its present deficiencies.
We have accomplished less than we hoped in raising up a band of young
lawyers who would maintain, even in the midst of London practice, an
interest in legal history and juristic speculation. The number of
persons in England who care for either subject is undeniably small,
probably smaller, in proportion to the size and influence of the
profession, than in any other civilized country; and it increases so
slowly as to seem to discredit the efforts of the Universities. Of those
who have undergone our law examinations comparatively few have either
enriched these subjects by their writings, or have become teachers among
us, or have taken any part in promoting legal studies elsewhere[253].
-----
Footnote 253:
A very few names occur to me of persons who have so written or taught,
but I abstain from mentioning these lest I should omit others.
-----
How is this deficiency, which ought to be candidly confessed, to be
explained? No one will lay it at the door of the University and College
teachers, whose eminent services have been already referred to. To me it
seems chiefly due to the following causes, causes which I mention
because they may all be removed. One of them is the short-sighted and
perhaps somewhat perverse unwillingness of the authorities who control
admission to practice in both branches of the profession in London, to
give full recognition to our Oxford Law Examinations and Degree. Were
the tests we apply so recognized as to relieve one who had passed them
from all examinations for admission either to the bar or to practice as
a solicitor, except such examinations as turn upon those purely
practical matters which can only be learnt in a barrister’s chambers or
a solicitor’s office, a strong motive would be supplied to men destined
for the profession to pursue their legal studies and take their legal
examinations here, where we may without vanity say that both teaching
and examining are understood much better than by the professional
authorities in London. Needless to add that the University would be
perfectly ready to allow those authorities every means of satisfying
themselves of the character of her examinations, as the General Medical
Council is accustomed to supervise the medical examinations of the
various medical bodies.