Volume 93 / Part 1 — LORD MACKENZIE’S ROMAN LAW.[3]

LORD MACKENZIE’S ROMAN LAW.^[3]

It has sometimes been suspected that, in the noble delineation of the Roman character ascribed to Anchises in the sixth book of the ‘Æneid,’ Virgil was induced, by unworthy motives, to depreciate unduly the oratory of his countrymen as compared with that of the Greeks; and undoubtedly the inferiority of Cicero to Demosthenes, as a mere forensic pleader, is not so clear or decided as to demand imperatively from a Latin poet the admission there unreservedly made by the blunt and almost prosaic expression, “Orabunt causas melius.” Possibly, however, it was the poet’s true object, by yielding the most liberal concessions on other points, to enforce the more strongly his emphatic assertion, not merely of the superiority of the Romans in the arts of ordinary government, but of their exclusive or peculiar possession of the powers and faculties fitted for attaining and preserving a mighty empire. It is certain that he has justly and vividly described the great characteristic of that people, and the chief source and secret of their influence in the history of the world, when he makes the patriarch exclaim,—

“Tu regere imperio populos, Romane, memento;

Hæ tibi erunt artes.”

In aid of the high moral and intellectual qualities which led to their success as the conquerors and rulers of the world, it is most material to notice the structure and genius of the language in which the Roman people expressed and embodied their political, legislative, and judicial determinations. Every national language is more or less the reflex of the national mind; and in no instance is this correspondence more conspicuous than in the case we are now considering.

The Latin language is inferior to the Greek in subtlety and refinement of expression, and is therefore far less adapted for metaphysical speculation or poetical grace—for analysing the nicer diversities of thought, or distinguishing the minuter shades of passion; but in the enunciation of ethical truths and of judicial maxims, it possesses a clearness, force, and majesty, to which no other form of speech can approach. The great foundations of law are good morals and good sense, and these, however simple and plain in their elements, are not mean or common things. On the contrary, they are susceptible of the greatest dignity of expression when embodied in words; and the language in which their principles shall be clothed may be of the utmost importance in rendering them both more portable in the memory and more impressive on the heart. The Roman jurists of the later period of the Republic were not careless students of the Greek philosophy; but they used it in their juridical writings with a wise discretion, and in special reference to the object of law, which is to lay down the broad rules of human conduct and personal rights in a form easily understood, and capable of being easily followed and faithfully observed by the mass of mankind.

The unequalled talent of the Roman people for political organisation is evinced by the manner in which the imperial authority was maintained, after the personal character of the nominal sovereigns had degenerated to the very lowest point of profligacy and imbecility. Our Teutonic ancestors had the wisdom to appreciate and adopt much of the machinery which they thus found in operation; and the municipal governments, as well as the judicial constitutions of Europe, are at this day influenced by the models which were thus left. The Popedom itself, on whose probable endurance for the future it would be hazardous to speculate, but whose marvellous ascendancy in time past is beyond dispute, was little else than an adaptation of the imperial organisation to ecclesiastical objects. But the influence of the Roman law on other nations was pre-eminently seen in the wide adoption of its general scheme, as well as of its special rules and maxims. Even the law of England—of all European systems perhaps the least indebted to the civil law—is deeply imbued with the Roman spirit in some of the most important departments of jurisprudence; and where the authority of the Roman law cannot claim a submissive allegiance, it is yet listened to as the best manifestation of the Recta Ratio that can anywhere be found. The vast experience of human transactions, and the endless complexities of social relations, which the Roman empire presented, afforded the best materials for maturing a science which was cultivated for noble objects by minds of the highest order, and embodied in propositions of unrivalled power and precision.

Independently of its influence on individual municipal systems, the Roman law deserves to be carefully studied, as affording the easiest transition, and the best introduction, from classical and philosophical pursuits to the technical rules and scientific principles of general jurisprudence. From Aristotle’s Ethics, or from Cicero De Officiis, the passage is plain and the ascent gentle to the Institutes of Gaius and Justinian; and these, again, are the best preparation for the perusal of Blackstone or Erskine. It ought, indeed, to be considered as a great privilege of the law-student that his path lies for so great a portion of its early way through a region which has been rendered so pleasing and attractive by the labours of the eminent men whom we have now named, and who combine so much charm of style and correctness of taste with so much practical wisdom and useful philosophy.

Hitherto, we think, there has been a great, or rather an utter, want in this country of any good Institute of the civil law, that could safely and efficiently guide the student in his early labours, or assist him in his more advanced progress. The elegant and admirable summary given by Gibbon in his History, cannot, without much comment and expansion, be made a book of instruction; but we feel assured that this want which we have noticed is supplied by the work now before us. Lord Mackenzie’s book, though bearing the popular and modest title of ‘Studies in Roman Law,’ is truly an Institute, or didactic Exposition, of that system, where its elements and leading principles are laid down and illustrated as fully as a student could require, while a reference is made at every step to texts and authorities, which will enable him to extend and confirm his views by a full examination of original sources. The enunciation of the legal principles is everywhere given with great brevity, but with remarkable clearness and precision, and in a manner equally pleasing and unpretending. The comparison which is at the same time presented between the Roman system and the laws of France, England, and Scotland, add greatly to the attraction as well as to the usefulness of the work.

At the risk of appearing to resemble the man in Hierocles who carried a brick about with him as a sample of his house, we shall here offer a few extracts in illustration of the character of the work and its style of execution, premising that the passages we have selected have reference to topics more of a popular than of a scientific kind.

The interest attaching at present to questions of international law, and to the rights of belligerents, will recommend the passages on those subjects which here follow:—

“If all the states of Europe were to concur in framing a general code of international law, which should be binding on them all, and form themselves into a confederacy to enforce it, this might be regarded as a positive law of nations for Europe. But nothing of this sort has ever been attempted. The nearest approach to such international legislation is the general regulations introduced into treaties by the great Powers of Europe, which are binding on the contracting parties, but not on the states that decline to accede to them.

“To settle disputes between nations on the principles of justice, rather than leave them to the blind arbitrament of war, is the primary object of the European law of nations. When war has broken out, it regulates the rights and duties of belligerents, and the conduct of neutrals.

“As the weak side of the law of nations is the want of a supreme executive power to enforce it, small states are exposed to great disadvantages in disputes with their more powerful neighbours. But the modern political system of Europe for the preservation of the balance of power forms a strong barrier against unjust aggression. When the power of one great state can be balanced, or kept in check, by that of another, the independence of smaller states is in some degree secured against both; for neither of the great Powers will allow its rival to add to its strength by the conquest of the smaller states....

“By the declaration of 16th April 1856, the Congress of Paris, held after the Crimean war, adopted four principles of international law. 1. Privateering is and remains abolished. 2. The neutral flag covers the enemy’s merchandise, with the exception of contraband of war. 3. Neutral merchandise, with the exception of contraband of war, is not liable to seizure under an enemy’s flag. 4. Blockades, in order to be binding, must be effective; that is to say, must be maintained by a force really sufficient to prevent approach to an enemy’s coast. This declaration was signed by the plenipotentiaries of the seven Powers who attended the Congress, and it was accepted by nearly all the states of the world. But the United States of America, Spain, and Mexico, refused their assent, because they objected to the abolition of privateering. So far as these Powers are concerned, therefore, privateering—that is, the employment of private cruisers commissioned by the state—still remains a perfectly legitimate mode of warfare. Britain and the other Powers who acceded to the declaration, are bound to discontinue the practice in hostilities with each other. But if we should have the misfortune to go to war with the United States, we should not be bound to abstain from privateering, unless the United States should enter into a similar and corresponding engagement with us....

“The freedom of commerce, to which neutral states are entitled, does not extend to contraband of war; but, according to the principles laid down in the declaration of Paris of April 1856, it may now be said that ‘a ship at sea is part of the soil of the country to which it belongs,’ with the single exception implied in the right of a belligerent to search for contraband. What constitutes contraband is not precisely settled; the limits are not absolutely the same for all Powers, and variations occur in particular treaties; but, speaking generally, belligerents have a right to treat as contraband, and to capture, all munitions of war and other articles directly auxiliary to warlike purposes. The neutral carrier engages in a contraband trade when he conveys official despatches from a person in the service of the enemy to the enemy’s possessions; but it has been decided that it is not illegal for a neutral vessel to carry despatches from the enemy to his Ambassador or his Consul in a neutral country. The penalty of carrying contraband is confiscation of the illegal cargo, and sometimes condemnation of the ship itself.

“The affair of the Trent, West Indian mail, gave rise to an important question of maritime law deeply affecting the rights of neutrals. In November 1861, Captain Wilkes, of the American war-steamer San Jacinto, after firing a roundshot and a shell, boarded the English mail-packet Trent, in Old Bahama Channel, on its passage from Havannah to Southampton, and carried off by force Messrs Mason and Slidell, two Commissioners from the Confederate States, who were taken on board as passengers bound for England. The Commissioners were conveyed to America, and committed to prison; but, after a formal requisition by Britain, declaring the capture to be illegal, they were surrendered by the Federal Government.

“The seizure of the Commissioners was attempted to be justified by American writers on two grounds: 1st, That the Commissioners were contraband of war, and that in carrying them the Trent was liable to condemnation for having committed a breach of neutrality; 2d, That, at all events, Captain Wilkes was entitled to seize the Commissioners either as enemies or rebels. Both these propositions are plainly untenable....

“In an able despatch by the French. Government to the Cabinet of Washington, M. Thouvenel declared that the seizure of the Commissioners in a neutral ship, trading from a neutral port to a neutral port, was not only contrary to the law of nations, but a direct contravention of the principles which the United States had up to that time invariably avowed and acted upon. Russia, Austria, and Prussia officially intimated their concurrence in that opinion.

“To argue the matter on the legal points in opposition to the disinterested and well-reasoned despatch of the French Minister was a hopeless task. In an elaborate state-paper, Mr Seward, the American Secretary of State, professed to rest the surrender of the Commissioners upon a mere technicality—that there had been no formal condemnation of the Trent by a prize-court; but, apart from this point of form, the seizure was indefensible on the merits as a flagrant violation of the law of nations; and if the principle was not so frankly acknowledged by Mr Seward as it ought to have been, some allowance must be made for a statesman who was trammelled by the report of his colleague, Mr Welles, the Secretary of the Navy, approving of Captain Wilkes’s conduct, and still more by the necessity of adopting a policy directly contrary to the whole current of popular opinion in the Northern States.”

The law of marriage and of divorce is very fully treated by Lord Mackenzie, and the peculiarities of the different European systems are well pointed out. The subject, however, is too extensive and important to admit of being incidentally noticed; and we shall confine our extracts here to a single passage describing a Roman form of cohabitation less honourable than matrimony, and such as we trust is never likely, to be legalised among ourselves:—

“Under Augustus, concubinage—the permanent cohabitation of an unmarried man with an unmarried woman—was authorised by law. The man who had a lawful wife could not take a concubine; neither was any man permitted to take as a concubine the wife of another man, or to have more than one concubine at the same time. A breach of these regulations was always condemned, and fell under the head of stuprum. In later times the concubine was called amica. Between persons of unequal rank concubinage was not uncommon; and sometimes it was resorted to by widowers who had already lawful children and did not wish to contract another legal marriage, as in the cases of Vespasian, Antoninus Pius, and M. Aurelius.

“As regards the father, the children born in concubinage were not under his power, and were not entitled to succeed as children by a legal marriage; but they had an acknowledged father, and could demand support from him, besides exercising other rights. As regards the mother, their rights of succession were as extensive as those of her lawful children.

“Under the Christian emperors concubinage was not favoured; but it subsisted as a legal institution in the time of Justinian. At last Leo the Philosopher, Emperor of the East, in a.d. 887, abrogated the laws which permitted concubinage, as being contrary to religion and public decency. ‘Why,’ said he, ‘should you prefer a muddy pool, when you can drink at a purer fountain?’ The existence of this custom, however, was long prolonged in the West among the Franks, Lombards, and Germans; and it is notorious that the clergy for some time gave themselves up to it without restraint.”

The practice of adoption prevailing in ancient Rome is well known, but an account of it as it is retained in the French law may be thought curious:—

“In France the usage of adoption was lost after the first race of kings: it disappeared, not only in the customary provinces, but also in the provinces governed by the written law. Re-established in 1792, adoption is now sanctioned by the Civil Code. Adoption, however, is only permitted to persons of either sex above the age of fifty, having neither children nor other lawful descendants, and being at least fifteen years older than the individual adopted. No married person can adopt without the consent of the other spouse. The privilege can only be exercised in favour of one who has been an object of the adopter’s care for at least six years during minority, or of one who has saved the life of the adopter in battle, from fire, or from drowning. In the latter case the only restriction respecting the age of the parties is, that the adopter shall be older than the adopted, and shall have attained his majority. In no case can adoption take place before the majority of the person proposed to be adopted.

“The form of adoption consists of a declaration of consent by the parties before a justice of the peace for the place where the adopter resides, after which the transaction requires to be approved of by the tribunal of first instance. After adoption, the adopted person retains all his rights as a member of his natural family. He acquires no right of succession to the property of any relation of the adopter; but in regard to the property of the adopter himself, he has precisely the same rights as a child born in marriage, even although there should be other children born in marriage after his adoption. The adopted takes the name of the adopter in addition to his own. No marriage can take place between the adopter and the adopted, or his descendants, and in certain other cases specified.

“The practice of adoption, which is better suited to some states of society than to others, still prevails among Eastern nations. It has never been recognised as a legal institution in England or Scotland.”

In ancient Rome, as at one time in Modern Athens, there was a practice of throwing or emptying things out of window not without danger or damage to the passer-by. This was the law on that point:—

“If anything was thrown from the windows of a house near a public thoroughfare, so as to injure any one by its fall, the inhabitant or occupier was, by the Roman law, bound to repair the damage, though it might be done without his knowledge by his family or servants, or even by a stranger. This affords an illustration of liability arising quasi ex delicto.

“In like manner, when damage was done to any person by a slave or an animal, the owner might in certain circumstances be liable for the loss, though the mischief was done without his knowledge and against his will; but in such a case, if no fault was directly imputable to the owner, he was entitled to free himself from all responsibility by abandoning the offending slave or animal to the person injured, which was called noxæ dare. Though these noxal actions are not classed by Justinian under the title of obligations quasi ex delicto, yet, in principle, they evidently fall within that category.

“All animals feræ naturæ, such as lions, tigers, bears, and the like, must be kept in a secure place to prevent them from doing mischief; but the same vigilance is not required in the case of animals mansuetæ naturæ, the presumption being, that no harm will arise in leaving them at large, unless they are known to be vicious or dangerous. So, where a foxhound destroyed eighteen sheep belonging to a farmer, it was decided by the House of Lords in an appeal from Scotland, that the owner of the dog was not liable for the loss, there being no evidence necessarily showing either knowledge of the vicious propensities of the dog or want of due care in keeping him; and it was observed that, both according to the English and the Scotch law, ‘the culpa or negligence of the owner is the foundation on which the right of action against him rests.’”

The subject of succession is treated by Lord Mackenzie in a very ample and satisfactory discussion. In particular, the chapter on ‘Intestate Succession in France, England, and Scotland’ will be found highly useful to the international jurist. Lord Mackenzie has not failed to observe here the striking peculiarity of the Scotch law, by which, with some qualifications very recently introduced, intestate succession, whether in real or personal estate, goes entirely to the agnates or paternal relations, and not at all to cognates or those on the mother’s side. This was the law of the Twelve Tables, but it was wholly altered in process of time, and, under Justinian’s enactments, paternal and maternal relations were equally favoured. In retaining the old distinction, the law of Scotland seems now to stand alone. The peculiarity may perhaps be explained by the strong feelings of family connection or clanship which so long prevailed in Scotland, and which bound together the descendants of the same paternal ancestor by so many common interests. But it is certainly singular that it should have continued to the present day with such slender modifications; and it is no small anomaly that, while a man may succeed to any of his maternal relations, none of his maternal relations can in general succeed to him, even in property which he may have inherited from the mother’s side.

The portion of the work devoted to actions and procedure introduces a clear light into a subject extremely technical, and often made very obscure by the mode in which it is treated. We have only room for a short extract as to the remedium miserabile of Cessio Bonorum:—

“The cessio bonorum has been adopted in France as well as in Scotland. By the ancient law of France, every debtor who sought the benefit of cessio was obliged by the sentence to wear in public a green bonnet (bonnet vert) furnished by his creditors, under the penalty of being imprisoned if he was found without it. According to Pothier, this was intended as a warning to all citizens to conduct their affairs with prudence, so as to avoid the risk of exposing themselves to such ignominy; but he explains that in his time, though the condition was inserted in the sentence, it was seldom acted on in practice, except at Bordeaux, where it is said to have been rigidly enforced.

“Formerly, a custom somewhat similar prevailed in Scotland. Every debtor who obtained the benefit of cessio was appointed to wear ‘the dyvour’s habit,’ which was a coat or upper garment, half yellow and half brown, with a cap of the same colours. In modern times this usage was discontinued. ‘According to the state of public feeling, it would be held a disgrace to the administration of justice. It would shock the innocent; it would render the guilty miserably profligate.’ For a considerable time it had become the practice in the judgment to dispense with the dyvour’s habit, and by the statute of Will. IV. it is utterly abolished.”

The work concludes with a very agreeable chapter on the Roman bar, from which we shall borrow a couple of passages. A certain portion of time was generally allowed to advocates for their speeches, but which varied before different judges and at different periods.

“A clepsydra was used in the tribunals for measuring time by water, similar in principle to the modern sand-glass. When the judge consented to prolong the period assigned for discussion, he was said to give water—dare aquam. ‘As for myself,’ says Pliny, ‘whenever I sit upon the bench (which is much oftener than I appear at the bar), I always give the advocates as much water as they require; for I look upon it as the height of presumption to pretend to guess before a cause is heard what time it will require, and to set limits to an affair before one is acquainted with its extent, especially as the first and most sacred duty of a judge is patience, which, indeed, is itself a very considerable part of justice. But the advocate will say many things that are useless. Granted. Yet is it not better to hear too much than not to hear enough? Besides, how can you know that the things are useless till you have heard them?’

“Marcus Aurelius, we are told, was in the habit of giving a large measure of water to the advocates, and even permitting them to speak as long as they pleased.

“By a constitution of Valentinian and Valens, A.D. 368, advocates were authorised to speak as long as they wished, upon condition that they should not abuse this liberty in order to swell the amount of their fees.”

The history of Roman practice, and, in particular, of the Cincian Law on the subject of advocates’ fees, is ably condensed; and the law of France and Scotland on the subject is thus stated:—

“In France, ancient laws and decisions, as well as the opinions of the doctors, allowed an action to advocates to recover their fees; but according to the later jurisprudence of the Parliament of Paris, and the actual discipline of the bar now in force, no advocate was or is permitted to institute such an action. In like manner barristers in England are held to exercise a profession of an honorary character, ‘and cannot, therefore, maintain an action for remuneration for what they have done, unless the employer has expressly agreed to pay them.’ Upon this point the authorities in the law of Scotland are not very precise. Lord Bankton says, ‘Though action be competent for such gratification, advocates who regard their character abhor such judicial claims, and keep in their mind the notable saying of Ulpian upon the like occasion, Quœdam enim tametsi honeste accipiantur, inhoneste tamen petuntur.’ But it is maintained by others, whose opinion is entitled to great weight, that no action lies for such fees—the presumption, in the absence of an express paction, being, that the advocate has ‘either been satisfied, or agreed to serve gratis.’”

What the law of England is on this most important question will probably be definitively settled in a cause célèbre now depending. We do not conceal our earnest hope that the principles laid down in the recent judgment of Chief-Justice Erle will never be departed from.

We close this notice by strongly recommending Lord Mackenzie’s book to the notice both of the student and the practising jurist, to each of whom we think it indispensable.

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