XIV METHODS OF LAW-MAKING IN ROME AND IN ENGLAND (continued 2)

The Senate was in most respects much better fitted for legislative work than the popular assemblies had been, indeed than most assemblies have been in any country. It was composed of men of mature age, versed in affairs, many of them having filled high office, others having served as judicial referees, if we may so render the term iudices; all therefore, or nearly all, possessing some knowledge, and many a large knowledge, of law and of administration. It was large enough to comprise persons of very varied experience, while small enough 306(in normal times) to be business-like, and to avoid the danger of degenerating into a mob^[128]. Like the comitia, it voted only once on a proposition, and that one vote was sufficient to pass a law. Again like the comitia, it could only deal with what the magistrate brought before it, private members having no initiative. But, unlike the comitia, it could debate a proposition and make amendments thereto; that is to say, when a particular draft measure was submitted, it was able, being thereby seized of the matter, to reject the proposition as drafted, and to pass one containing different provisions. There does not seem to have been anything analogous to our English system of going into Committee, and afterwards making a report to the House; but, as the decrees submitted were short and simple compared to those which the British legislature deals with, the method of amending the proposal submitted, or debating and passing an alternative proposal, was doubtless sufficient for the needs of the case. What was lacking to the Senate was not machinery, but force. It was a tool in the hands of the Emperor, and was used by him as a means of formally enacting and promulgating measures on which he had already decided. His influence soon came to be so fully recognized that the later lawyers sometimes cite not the Senatus consultum itself, but the speech (oratio) in which the Emperor proposed it to 307the Senate, although in these cases the legal validity of the law seems to be attributed to the vote of the Senate. After Hadrian it would appear that legislative decrees were always passed at the instance of the monarch.

Under an indulgent Emperor, and in matters of ordinary private law, there might of course be no great reason why amendments should not be suggested or even opposition made, by an active senator, to bills proposed by the presiding magistrate, although the magistrate himself was usually merely the mouthpiece of the monarch. But the habit of servility grew so fast, that even this remnant of independence seems to have soon become rare. Nothing was so dangerous as to give offence to a sovereign whose power was restrained only by his good nature.

The checks which have been noted as existing in the case of the comitia on prolixity or obscurity in the terms of a statute, were absent in the case of the Senate. Yet the good habits formed in earlier centuries were not lost. The Senatus consulta which remain to us are favourably distinguished by their clearness and brevity. The ease with which they could be passed, or repealed when passed, does not appear to have led to their being drawn carelessly as regards either substance or form. It may however be remarked that having been originally not so much laws as resolutions of a body primarily advisory, intended to express its opinion, and to guide or strengthen the hands of an executive magistrate, they continued to be couched in language hardly so technical as that of the old leges. They are less imperative in form, and often express quite as much in their preamble, which contains the motives 308that have suggested the decree, as through the more strictly enacting part. Occasionally they approach dangerously near, as preambles are apt to do, to becoming rhetorical declarations of policy.

The Senatus consulta actually preserved, or known to us by name, are less numerous than might have been expected. The same may be said of the leges, or rather of such among them as were of general and permanent effect, not mere acts of an executive nature. If we could suppose that the legislative activity of the Roman State had manifested itself only through leges and Senatus consulta, it would be hard to understand how that State, developing as it did, could have got on and attained its amazing development in wealth and population with so few legislative changes. The explanation, of course, is that the Praetor and the jurists were doing the main part of the work, just as during the eighteenth century in England the judges and text-writers were steadily developing our private law, which was but little altered by statute through the whole of that century. During the later Republic and the earlier Empire direct legislation was (speaking generally) resorted to either to abolish some deeply rooted rule or else to establish some new departure, which a magistrate hesitated to undertake on his own responsibility.

VIII. Direct Legislation at Rome.

C. The Emperor.

The third and last form of direct Roman legislation is that of imperial ordinance. In one aspect it is the most important form, because nearly all the law of statutory 309origin which has come down to us was enacted by the Emperors, the number of leges and Senatus consulta being slight in comparison. The Emperors, moreover, spoke the last word. It was their legislation which gave to the Roman law the shape in which it descended to the modern world both in the East and in the West.

The Emperor’s legislative authority grew up slowly and almost imperceptibly out of the rights which he enjoyed as holder of several great magistracies, or invested with the powers which belonged to them. Although, in later times, the imperial function of legislation was ascribed to a formal transfer made to him by the people of their own authority^[129], it is important to remember that its true parent is to be sought, not in leges, nor even in Senatus consulta, not in any representation by him, as the heir of the Assembly, of the ancient right of popular sovereignty, but rather in the Edicts of the magistrates, whether their formal enunciations on entering office of the rules by which they proposed to act, or their less public instructions to their subordinate officials.

Even the action of the jurists, and the custom of issuing answers on points of law (responsa), contributed something to the conception of the Emperor as a source of law, for he was, as a magistrate, an authoritative exponent of the contents of the customary law, and of the interpretation of the statute law; and if an answer given under his commission by an authorized jurist was binding on a iudex, how much more weight was due to a declaration proceeding from himself, the fountain-head of authority? That the imperial ordinances 310have not preserved the outward forms and character of the republican statutes is a consequence of these facts and of the conception I have described. They are not expressed in the same strict and highly technical language as the old statutes were. As regards some of them, and especially some of those which belong to the first two centuries of the Empire, it is hard to say whether they were originally intended to have a general application, for they may have been mere instructions or declarations of opinion, given for the special occasion and purpose only. In fact the Emperors found it necessary to protest against the tendency to attach legal weight to all their words. Trajan, for instance, who seems to have left the character of being more indulgent than most of his predecessors or successors—witness the story of the widow through whom and the prayers of Pope Gregory he obtained salvation^[130]—declares that when he makes an answer to a particular request he by no means desires to be taken as establishing a precedent. He felt, no doubt, that in many cases the precedent would be of questionable value, according to the proverb that hard cases make bad law. However, the tendency was too strong to be resisted. All declarations emanating from the supreme authority in the State were taken to be binding on its subjects: and we may imagine how often a wily advocate, or an adulatory judge, would, with loud professions of loyalty, insist on regarding as law what the Emperor had intended to be merely a good-natured compliance with the petition of some unlucky or importunate suppliant.

It is not necessary for our immediate purpose to 311describe the various forms which the legislation of the Emperors took. They are classed as Rescripts, answers to questions or petitions, Edicts or general proclamations, Mandates or instructions to officials, Decrees (decreta), decisions of the Emperor as being at first practically, and at last legally also, a Supreme Court of Appeal^[131]. In later times the general name of Constitutions (constitutio est quod imperator constituit), was given to them; and in what has to be said further, minor differences between the above mentioned forms may be ignored, and the various kinds of constitutions may be treated together as being all of them enunciations by the sovereign power of those general rules of law which it desired to have observed by its subjects—as being in fact on the same footing as an imperial Ukase in Russia, or an Act of Parliament in England.

Such legislation by an irresponsible autocrat as that with which the Roman State ended, stands at the opposite pole from that legislation by a primary assembly with which the Roman State began. The latter organ was a stiff, heavy, cumbrous machine, which it was hard to set in motion, and which could work only under certain prescribed forms. The former was not only immensely powerful, but so readily applicable, playing so swiftly and so smoothly, that it was likely to be used too often and to act too fast. The Roman Emperor occupied, it must be remembered, a position different from that of any absolute sovereign in modern times. The Czars in Russia now, the 312Prussian and French kings in the last century, are, or were, the heads of their respective nations, and therefore not only to some extent likely to participate in national ideas and sentiments, but also largely amenable to national public opinion. However complete their legal sovereignty and practical control, the misuse of their legislative powers could not escape popular censure. A national king is naturally restrained by the fear of displeasing his fellow countrymen. But the monarch of the Roman world, a world where the old Roman nationality had, before it expired, so far crushed the other subject nationalities that none of them could offer any resistance to the levelling pressure of the imperial authority, found himself unguided and uncontrolled by any influence, except the dread of a palace conspiracy or a military rising. Public opinion possessed then no voice, such as it afterwards found in the church, or finds now in the press. The various peoples who, from the second or third century A.D. onwards, called themselves Romans, had not been sufficiently fused together to have a common public opinion. It was not till the sixth or seventh or eighth century that the greatly narrowed Eastern Empire began to have a social and moral coherence, and developed into what might be called a National power.

This unique position of the Roman Emperor made legislation a great deal easier for him than for any modern monarch, easier than for the ruler of China, because there was no vast body of ancient customs he might fear to break through, easier than for a Turkish Sultan, because there was no quasi-ecclesiastical 313authority like the Sheik-ul-Islam or the whole body of Muslim doctors he might fear to offend. And the fact already noted that the powers of the popular Assembly had not been formally vested in him, worked in the same direction. Had there been any legal transference of legislative functions, some of the old forms and methods would have passed over with the transfer. There would have been at any rate a pretty sharp line drawn between the officially promulgated ordinances of the Emperor and the merely occasional and informal expressions of his will. But (as has already been noted) the Emperor did not legislate as the assignee of the popular power of legislation. His function of making laws sprang from his authority as a magistrate, and the undefined character of that authority remained with him, and helped to make his exercise of it infinitely various in shape and expression. Accordingly in later days no line was formally and technically drawn between the more and the less solemn declarations of his sovereign will. He was not bound by the laws. He made law as a part of his daily administrative and juridical action. He legislated, one might almost say, as he talked and wrote. He exhaled law. Whenever an idea occurred to him, or to the minister authorized to speak in his name, he had only to sign, in the purple ink reserved (in those later days) for the monarch, a few lines, and therewith a law sprang at once into being.

This was the theory, and this was also to some extent the practice. Still the exigencies of a position which threw on one man a prodigious burden of toil and responsibility, compelled the Emperors to 314make regular provision for the discharge of their legislative and judicial work. A Council soon grew up, consisting at first chiefly of Senators, afterwards largely of jurists, whose members acted as assessors to the Emperor when he heard civil or criminal cases, and who also advised him on projects of legal change. At first it was a fluctuating body, composed of persons whom the monarch summoned for each particular occasion, though doubtless some of the ablest and most trusted men would be invariably summoned. But under Trajan and Hadrian it became a regularly organized chamber of formally nominated and salaried officials, in which, besides jurists, there sat some Senators and Knights, and a few of the chief court officers, together with the Praetorian Prefect, who seems after the second century to have held the leading place. As it was numerous, we may suppose that particular members were summoned for particular kinds of business, or that it often worked by committees. In all these points it furnishes an interesting parallel to the English Privy Council. And it was itself, under the name of Consistorium, which it took in the time of Diocletian, the model on which the papal Consistory was ultimately built up by the bishop of the imperial city. Some of its chief members were the immediate ministers of the sovereign, journeying with him, as Papinian accompanied Septimius Severus to York, or directing legal and judicial business from Rome, while he made progresses through the provinces, or warred against the barbarians on the frontier. Among the duties of the Emperor’s legal councillors, that of prompting, directing, and shaping legislation must 315have been an important one. Probably there was a regular staff for the purpose, a sort of Ministry of Justice, directed by the Praetorian Prefect, and in later times by the Quaestor, with a body of draftsmen and clerks. How much the Emperor himself contributed, or how far he examined for himself what was submitted to him, would depend on his own special knowledge and industry. Rude soldiers like Maximin, debauchees like Commodus, would leave everything to their advisers, and if these had been wisely selected by a preceding Emperor, things might go on almost as well as under a capable administrator like Hadrian, or a conscientious one like Severus Alexander^[132]. The number of constitutions enacted was enormous, judging not only from what the Empire must have needed, but from the laws, or fragments of laws, which remain to us in the Codes of Theodosius II and Justinian; and as the legislative action, both of the Senate and of the Magistrates (other than the Emperor), had almost wholly ceased after Hadrian’s time, while the local rules and customs of the provinces tended to be more and more superseded by the law of the ruling city, legislation may, at least for a considerable period, have rather increased than diminished in volume.

The good and bad points of a system which commits the making of laws to an absolute sovereign are easily summed up. Autocratic power is the most swift and efficient of all instruments for effecting reforms. Used with skill, tact, and moderation, it can confer incalculable 316benefits on a country. To be able at your pleasure to abolish obsolete institutions, to curtail the offensive privileges of a class, to override vested interests, to remove needless anomalies and antiquated forms of procedure, to simplify the law by condensing a confused mass of statutory provisions, or expressing the result of a long series of cases in a single enactment, and to do all this without the trouble of justifying your enlightened purposes to the dull and the ignorant, or of mitigating hostility by concessions and compromises which ruin the symmetry and reduce the effectiveness of your scheme—this is indeed a delightful prospect for the law reformer. The power of trying experiments is seductive to the philanthropist or the philosopher, for there are many problems which ought to be attacked by experimental methods, since nothing but an experiment can test the merit of a promising plan. Yet experiments are just the things which in popularly governed countries it is rarely possible to try, because the bulk of mankind, being unscientific, will seldom permit a thing to be tried till it has been proved to be not merely worth trying but absolutely necessary, while when it has been tried, and has not worked well, it is almost as hard to persuade them either to vary it or to drop it altogether. To tell the multitude that the scheme you propose may fail, though you think it worth trying, is to discredit it in their eyes. To admit that it has failed is to destroy your own credit for the future.

So again, if it is a question of improving the form and expression of the law, an absolute monarch evidently enjoys the finest possible opportunities of creating a perfect system. He can command all the highest 317legal ability of the State. He can bestow upon his commission of legislators or codifiers the widest discretion. When they have finished their work he can subject it to any criticism he pleases before enacting it as law. When he enacts it, he can abolish all pre-existing law by a stroke of the pen. Even afterwards he can readily correct any faults that may have been discovered, can suppress old editions, can provide means by which the law shall be regularly from time to time amended, so that all new statutes and all interpreting decisions shall be incorporated with it or appended as supplements to it. Few are the philanthropic enthusiasts, few are the theoretical codifiers, who have not sighed for an Autocrat to carry out their large designs.

According to that law of compensation which obtains in all human affairs these advantages are beset by corresponding dangers. Ease begets confidence, confidence degenerates into laxity and recklessness. As the laws of metre and rhyme help the versifier by forcing him to study and polish his diction, so he who is not now and then stopped by obstacles is apt to advance too quickly, and may not consider whither he is going. If an error can be readily recalled it is lightly ventured, and the hasty legislator discovers too late that it is not the same thing to recall an error as never to have committed it. In the field of legislation the danger of doing too much is a serious danger, not only because the chances of error are manifold^[133], but because the law ought to undergo as few bold and sudden changes as possible. 318The natural process whereby the new circumstances, new conditions, new commercial and social relations that are always springing up become recognized in custom and dealt with by juridical science before direct legislation impresses a definite form upon the rules that are to fix them—this process is the best, and indeed the only safe way by which a nation can create a refined and harmonious legal system. Even the certainty of the law is apt to suffer if legislation becomes too easy, for the impatient autocrat may well be tempted, when some defect has been discovered, to change it forthwith, and then to find that the change has been too sweeping, so that steps must be taken backward, with the result of rendering doubtful or invalid transactions which have occurred in the meantime. If these dangers are to be avoided, it must be by entrusting legislation to the hands of advisers not only learned and skilful but also of a conservative spirit. In war and politics boldness is quite as needful as caution, but in reforming the law of a country the risk of going too slow is less serious than that of going too fast.

These observations are illustrated by the course of events at Rome. At first, while the magistrates were still hard at work in building up the law by their Edicts, and the jurists no less active in developing it on conservative lines by their responsa and treatises, the Emperors used their legislative power sparingly because they were guided by accomplished lawyers. Comparatively few constitutions are cited from the days of Trajan and Hadrian, and even from those of the Antonines. These constitutions are short, clear, precise, introducing only those new rules or deciding only 319those questions which it was necessary to establish or deal with. After the time of Diocletian^[134], when the powers of the old magistrates had withered away and the fountain of juristic genius had dried up, direct legislation became far more copious, and began to range more widely over all sorts of subjects. Serviceable it certainly was in the way of abolition, for there was much to be abolished. But it tended to become always more and more rash and heedless in its dealings with the pre-existing law. Apart from the harshness or bad economics which frequently marred its provisions, it was often injudicious in matters of pure legal science. If in some cases it cleared the ground of antiquated rules and forms, in others it merely shore away abruptly and inartistically the more conspicuously inconvenient applications of an old doctrine, while leaving the doctrine itself to create future difficulty. It acted too much with reference to the particular evil dealt with, too little with a view to the law as a whole. It was, in a word, too unmindful of that elegantia, that inner harmony and consistency with principle which had been always before the eyes of the elder jurists. Legal style and diction experienced a similar declension. From and after the days of Diocletian, the language of imperial ordinances grows more and more rhetorical, pompous, and turgid. The imperial utterances had never emulated the scrupulous exactitude and technicality of the republican leges. But they were, during the first two centuries of the Empire, simple and concise. Afterwards, while becoming more 320prolix they became also less exact. These faults are, to be sure, not mainly due to the more palpably despotic position of the Emperor, but rather to the steady deterioration of juridical and literary capacity which mark these later centuries. That the decline was less evident in the department of law than in most other branches of intellectual life may be ascribed, partly to the nature of the subject, which does not invite florid treatment, partly to the absence of Greek rhetorical models, Greek being eminently the language of rhetoric, partly, perhaps, also to the influence of the two great law schools of Beyrut and Constantinople, and to the fact that the writings by which the lawyer’s mind was formed were still the admirable works of the luminaries of the early Empire. Still the fall is a great one. How much more repellent is the extreme of over-ripe laxity than the extreme of primitive stiffness may be felt by any one who will compare the weak and wordy ‘New Constitutions’ (Novels ) of Justinian with the crabbed strength of the Twelve Tables, abrogated by Justinian himself after a thousand years of reverence. There is, in fact, only one fault which the later imperial legislation may appear to have avoided when we compare it with that of modern England or America. It goes much less into detail. It does not seek to exhaust possible cases, and provide for every one of them. This merit, however, is due, not so much to skill on the part of the Roman draftsmen, as to the range of power allowed to Roman officials and judges, and to the faint recognition of the rights of the individual subject. The tedious minuteness of modern English and American 321statutes, if it grieves the scientific lawyer, is after all a laudable recognition and expression of that respect for personal liberty and jealousy of the action of the executive which have distinguished the English race on both sides of the Atlantic. Thus that which might appear to be an excellence of the later imperial legislation in point of form is seen to be an evil in point of substance, for it is due, not to any superiority of legal skill, but to the existence of an autocracy which did not care to limit the discretion of its subordinate officers.

IX. Direct Legislation in England: Parliament.

It remains for us to consider the organ of direct legislation in England, and the work which that organ turns out. Here again I must turn away from the large field of historical inquiry. The history of English statutes, their development out of petitions addressed to the sovereign in his Great Council, the mode in which they were drafted, debated, and passed, the rules of interpretation which have obtained regarding them, their influence at different epochs upon the growth of the Common Law, the development and value of the functions of non-official members of Parliament in preparing them and getting them passed, the decay of those functions which the last few years have seen—all these would supply interesting and instructive matter, not merely for an essay but for a treatise. But seeing how long we have had to wait for a philosophical history of the law of England in general, one need 322not be surprised that this particular department still waits for its historian^[135].

In England there has been, through the long course of our history, only one organ of Direct Legislation, viz. the Great Council of the nation. It began as a Primary Assembly of all freemen. It passed, between the time of Athelstan and that of Henry III, through a phase in which it had, owing to the growth of the nation and to the practical limitation of its membership, almost ceased to be Primary in fact, though its theoretical character, as embracing the whole people, had not been abrogated. Since the time of Edward I it has consisted of two branches, one of which is Primary, the other Representative; and this present phase is evidently drawing to its end.

Thus the history of Direct Legislation in England stands contrasted with the history of such legislation in Rome in two points: (1) that we in England have always had an organ which in intendment of law was the same from beginning to end, and admittedly supreme; and (2) that we have never had more than one organ at the same time, whereas at Rome the theoretically complete and unrestricted legislative power of the popular Assembly coexisted, for a time, with the legislative power of the Senate, and the theoretically complete and unrestricted legislative power of the 323Senate coexisted for a certain period with the legislative power (stronger, but at first carefully disguised) of the Emperor. It may seem absurd to speak of two organs of direct legislation as each complete and supreme: yet such would seem to have been the theory of the Roman law. We in England came near having a similar state of things in the days when the Crown claimed, and was sometimes permitted to exert, a power of legislating apart from Parliament and not in virtue of any permission by Parliament. But this power was never formally recognized by the law.

The Parliament of the United Kingdom and that eldest and strongest of its numerous progeny, the Congress of the United States, seem at first sight well composed and admirably equipped for securing legislation which shall be excellent in point both of Substance and of Form. As to excellence of Substance, these assemblies ought to be able to make such laws as the people wish and need, for they are popular in character, giving full expression to the wishes of all classes, and enabling any person or section aggrieved by existing defects in the law to state his complaints and suggest a remedy for them. The British Parliament, moreover, consists of two Houses, one of which, while deficient in the strength that comes from popular election, is by its composition capable of looking at questions from a point of view unlike that of the Lower House. It contains many men of great ability and knowledge of affairs, so that it could well discharge (if so disposed) the functions of criticism and revision. So the American Congress has also the advantage of being composed of two 324branches, either of which can criticize and amend the Bills passed by the other.

As regards excellence of Form, which is that with which we are here specially concerned, several notable merits may be claimed for the British Parliament. The House of Lords, as has been just observed, contains among the fifty or sixty persons (out of nearly six hundred members) who habitually attend its sittings not a few possessing intellectual power and practical experience, with (usually) some seven or eight distinguished lawyers, the flower of the legal profession. Being a representative body, the House of Commons contains persons who are presumably above the average in knowledge of the world and its affairs, as well as in intellectual capacity. Among these there are to be found many men (though a smaller proportion than is found in the American Congress or in some colonial legislatures) who possess a technical acquaintance with the laws of the country, and ought to be specially well fitted to amend them, while at the same time any such tendency as professional men might have to indulge in mere technicalities is likely to be corrected by the presence of a majority of laymen. They deliberate in full publicity, and thereby can obtain from all quarters suggestions that may direct or help them. They are responsible to those who have sent them up, and who can closely watch their conduct. Ample opportunities are provided for the discussion of every measure, and for curing any defect which may lurk in any Bill brought forward either by the Ministers of the Crown, liable through their position to a fire of hostile criticism, or by a private member. Every Bill has to pass through 325seven stages in the House of Commons^[136], and six in the House of Lords, and at each of these stages it may be debated at indefinite length^[137]. That must be, one would think, either a very trivial or a strangely hidden blemish which escapes the notice of keen, experienced, and often unfriendly critics on twelve successive occasions^[138]. Could any machinery be better adapted to secure that the laws passed shall be expressed in the most clear and precise terms, that each shall be well arranged and self-consistent, that every new statute shall be properly fitted into those that have gone before, and shall, in effecting any change, repeal expressly the parts of previous statutes which it affects, so as to provide against possible uncertainty or discrepancy?

Why is it then that we hear so many complaints about the condition of the laws of England as to the number of points which remain unsettled, as to the confusion in which some great departments of law lie, as to the undue length of our statutes, their obscurity, their inconsistencies, their omissions? I do not inquire to what extent these complaints are well founded. It is enough to note that they proceed not merely from scientific jurists, who might be supposed to be enamoured of an impossible ideal, but from such practical 326men as compose our commercial classes, such technically competent as well as practical men as the judges of the land.

Somewhat similar complaints are made in the United States. The methods of legislation used there are generally similar to those of Britain, both in the Federal Congress and in the forty-five State Legislatures, and every one of these bodies consists of two Houses, each jealous of the other. The chief difference is that the Americans consolidate their statutes at certain intervals, so that the statute law, both Federal and State, is brought within a smaller compass than that of the United Kingdom. Subject to this and to some minor dissimilarities, the remarks which follow on the causes why British legislation is less perfect than might be expected from the elaborate machinery provided for producing it apply to the United States also^[139].

The methods of British legislation, and the dangers incident to those methods, are exactly the opposite to those which we have noted in Rome. Both under the Republic, when statutes were passed at the instance of a magistrate with no possibility of amendment by the Assembly, and under the later Empire, when the monarch or his advisers could issue a law with as much ease and as little personal fear of consequences as a counsel can draw a will or the articles of a joint stock company, no provision was made for independent criticism, nor for discussion, nor for the interposition of delays. The excellence of the law depended on the 327person who prepared and proposed it, and on him alone^[140]; and the law could be issued to take effect as soon as the Assembly had given its one vote or the Emperor his one signature. The Senate could indeed debate and might amend the forms of decrees submitted to it, but as it was really a mere instrument in the Emperor’s hand it exercised these powers very sparingly.

With us in England the opportunities for debate, for resistance, and for amendment are so ample as to prevent many things from being done which ought to be done, and to impress an unscientific cumbrousness, prolixity, and inelegance upon most of the work we turn out. Too many persons are concerned, and few of them have any care or taste for technical excellence. The House of Commons is overloaded with work, some of it work which it had better not attempt, but which it does attempt in deference to the clamorous demands of particular sections of opinion. A reform in the substance of the law excites little interest unless it has either some political (i.e. party) importance, or has a considerable pressure of public opinion behind it. A reform in the form and expression of the law, having neither of these forces to back it up, excites no interest at all. Accordingly it is neglected, for a Ministry is disposed to think first of pleasing its own supporters, then of winning popular favour in general, and accordingly gives the time at its disposal to measures deemed likely to secure for it political advantage.

Private (i.e. unofficial) members of Parliament might 328supply what is lacking in the Ministry by bringing forward and passing modest and useful Bills, calculated either to remove minor defects in the substance of the law or to improve its form. But the Ministry now commands so large a part of the available time of the House of Commons, and the opportunities given to members for arresting the progress of other members’ bills are so abundant, that hardly anything can be accomplished by an unofficial member. In the United States, where all members are unofficial, the despotism of the British Ministry, which after all is a responsible despotism, is replaced by the irresponsible despotism of the Committees, which are as much disposed as is a British Ministry to be swayed by sectional pressure or by the prospect of political gain.

The British House of Commons is too large for discussing what may be called the technical or formal part of legislation. Its debates in Committee on points of substance are often excellent. But it cares little for harmony, propriety, and conciseness of language. If an inexperienced enthusiast for legal symmetry observes, in proposing an amendment, that his terms will not affect the substance, though they will improve the form, of the clause, he is impatiently rebuked for occupying the time of the House with what ‘will make no difference.’ On the other hand, changes in substance are constantly made in Committee which have the effect of rendering the form of the measure worse than when it came from the draftsman’s hands. Clauses are put in or struck out, exceptions are added, references to other statutes are inserted, which make the sense of the enactment difficult to follow and its 329construction uncertain. Sometimes these faults are corrected in that later consideration which is called the Report stage. Sometimes they are not, either because they have escaped notice, or because the Ministry are in a hurry, and do not wish to risk the further raising of questions likely to give trouble. The House of Lords ought to correct all such blemishes. But it seldom does so, either from indolence, or because it does not wish to differ with the House of Commons except where it has some class interest, political or economic, to contend for. In fact, that function of revision which modern theory attributes to the House of Lords is not discharged.

The facilities which Parliamentary procedure affords for delaying the progress of Bills in the House of Commons are so ample, not to say profuse, that the practice has grown up of drafting Bills, not in the form most scientifically appropriate, but in that which makes it easiest for them to be carried through under the fire of debate. To lay down those broad, clear, simple propositions of principle which conduce to the intelligibility and symmetry of the law is to invite opposition, and to make the process of opposing easier for those who desire to resist, but have not the technical knowledge needed for a minute discussion. To bury a principle out of sight under a mass of details; to avoid the declaration of a principle by enacting a number of small provisions, which cover most of the practically important points, yet do not amount to the declaration of a new general rule; to insert a number of exceptions, not in themselves desirable, but calculated to avert threatened hostility; 330to hide a substantial change under the cloak of a reference to some previous Act which is to be incorporated with the Act proposed to be passed; to deal with some parts of a subject in one year, and postpone some other parts to be dealt with in another measure next year, while leaving yet other parts to the chances of the future, though all ought to have been included in one enactment;—these are expedients which are repellent to the scientific conscience of the draftsman, but which are forced on him by the wishes of the Minister who is in charge of the Bill and who foresees both the objections that will be taken to it and the opportunities for obstructing it which parliamentary procedure affords. Yet the Minister may well plead that, with the limited time at his disposal, these expedients are essential to the passing of his Bill. Any one can see what complication, what obscurity, what uncertainty in the law must needs result from this way of amending it.

Thus it has come about that our English statute law is more bulky and even more unscientific in its form (whatever the excellence of its matter) than was the statute law of the Roman Empire when Theodosius II, and afterwards Justinian, set themselves to call order out of chaos. No Theodosius II, no Justinian, need be looked for in England. Yet much might be done to reduce the existing statutes into a more manageable mass, and something to improve the form in which they come from the hands of the legislature. The former work, previously in the hands of the Statute Law Commission, has since that body came to an end been entrusted to another body called the Statute Law 331Committee, which is conducting a general revision of the statutes. It has issued a Revised Edition coming down to a. d. 1886, and under its auspices a number of useful Consolidation Acts have been passed, whereby the Statute Law, and in a few instances the Common Law also, relating to particular departments has been brought together and enacted as an orderly whole. The more difficult enterprise of providing better methods for turning out new law in a clear, concise, and scientifically ordered form, is rarely discussed, even by lawyers, and seems to excite no public interest. It raises many difficult questions which this is not the place to treat of, so I will be content with observing that the remedy for the present defects of British statutes which seems least inconsistent with our parliamentary methods, would be to refer each Act, after it had passed both Houses, but before it received the royal assent, to a small committee consisting of skilled draftsmen and of skilled members of both Houses, who should revise the form and language of the Act in such wise as, without in the least affecting its substance, to improve its arrangement and its phraseology, the Act being formally submitted once more to both Houses before the royal assent was given, so as to prevent any suspicion that a change of substance had been made. It is, however, unlikely that Parliament will consent to any proposal of this nature; and even if some such expedient were adopted it would, at least in some cases, fail to remove the faults above described, because they are necessarily incident to legislation by large assemblies on matters which excite popular feeling and involve political controversy.

332

X. Some Reflections suggested by the History of Legislation.

The chief reflections which a study of Roman and English modes of law-making seem to impress upon the inquirer’s mind are the three following.

The first is that the law of best scientific quality is that which is produced slowly, gradually, tentatively, by the action of the legal profession. At Rome it was produced by the unofficial jurists under the Republic, by the authorized jurists under the earlier Empire, by the magistrates who framed and went on constantly revising the Edicts from the time of the Punic Wars to that of Hadrian. In England it has been produced by the writers of text-books, but still more by the judges from the time of Glanvil and Bracton down to our own day. Our private law is as much a growth of time as is our Constitution, or as are our ideas on such subjects as economics or ethics. What has been true of the past will be true of the future; and though we can foresee no changes in the future comparable to those which have built up the existing fabric of our law out of the customs of the thirteenth century, we must expect the process of change to continue as long as life itself, and must beware lest by any attempt at finality we should check a development which is the necessary concomitant of health and energy.

The second is that the special point wherein the Roman system had an advantage over our own, and indeed over that of all modern countries, was the existence of an organ of government specially charged with 333the duty of watching, guiding, and from time to time summing up in a concise form, the results of the natural development of the law. The Praetor with his Edict is the central figure in Roman legal history, and a unique figure in the history of human progress. The Roman statutes of the Republic were not, except perhaps in their brevity, superior to our statutes down to the time of George III. The imperial constitutions, especially the later ones, are inferior in substance and perhaps not better in form than our later English statutes. The treatises of the Roman lawyers, if more convenient in point of form than our volumes of Reports, contained discussions not more acute and subtle, nor so great a wealth of matter; and they were not more free from discrepancies. But neither England nor the United States has ever had or can have any one who could conduct legal reforms in such a way as did the Praetor.

A third reflection is that the various departments of legislation are not equally well suited to be developed by one and the same organ of legislation. Administrative law can hardly be created except by the direct action of the sovereign power in the State, whether the monarch or the Legislative Assembly acting at the instance of the Executive. In every country that kind of law has been so created, and its growth belongs to a comparatively late stage in the progress of a State. As the need for a more elaborate civil and military administration increases, so does the organ appropriate for legislating on such matters become evolved. A very large part of recent legislation in England^[141] and in the 334United States belongs to this category, and similarly a large part of the Codes of Theodosius II and of Justinian are filled by such matters.

A system of procedure, civil and criminal, with the judicial machinery required to work it, may be created either by the direct legislative action of the supreme power, or by custom and the action of the Courts. Both at Rome and in England it was through usage and by the Courts themselves that the earlier system was slowly moulded; both at Rome and in England it was direct legislation that established the later system. Functions discharged by both the Praetor and the Chancellor are the offspring of custom and not of statute. But the judicial system of the Roman Empire, as well as the mode of procedure by formulae (established by the Lex Aebutia probably about B.C. 200) and the criminal quaestiones perpetuae of the later Republic, and similarly all the changes made in English procedure and the English Courts during the last two centuries, culminating in the sweeping reconstruction effected by the Judicature Act of 1873, were the work of direct legislation.

Criminal law has everywhere grown out of Custom, and has in all civilized States been largely dealt with by direct legislation. In most European countries it has been codified by statute, to the general satisfaction of the people; and the conspicuous success of the Indian Penal Code shows that English criminal law is susceptible of being so treated. Thus we may say that all the branches of law which I have enumerated are fit matters for direct legislation by the sovereign power, and less fit to be left to jurists and magistrates.

335As to private law in the narrower sense of the term, the law of property, of inheritance, of contracts, of torts, and so forth, it has already been remarked that it was at Rome and is in England the offspring of Custom, that is to say, of the usages of the community, and of the reflections and discussions of lawyers, bringing these usages into a precise shape and developing them in points of detail, together with the decisions of judges stamping them as recognized in those points of detail as well as in their general principles. As time went on, direct legislation was more and more resorted to both at Rome and in England either to define or to change the law which jurists, magistrates, and judges had wrought out of materials provided by custom. It was often necessary, because there were faults in the law which the Courts had not the power, even if they had the wish, to alter. Yet direct legislation has seldom been successful except either in expunging such faults, or in systematizing what was already well settled. Compare, for instance, the modern law of negotiable instruments, built up by the custom of merchants and the Courts, and not reduced to the form of a statute till nearly every question had been thoroughly worked out by lawyers in the course of judicial practice, with the law of Joint Stock Companies, which is mainly the product of direct legislation. The former is as definite and practically convenient as the latter is confused and unsatisfactory. It is quite true that the latter topic is one which could not well have been left to usage and the Courts. Yet such a comparison indicates the difficulties which confront a legislature when it attempts to create de novo, that is to say, on general principles and without much 336help from custom. The law of Joint Stock Companies with limited liability is one of those departments which needs to be treated by the method of constant experiment, varying from time to time the remedies needed against the new forms in which fraud and trickery appear, and meeting by fresh provisions the devices by which crafty men evade the rules intended to protect the unwary^[142].

A magistrate like the Roman Praetor might perhaps deal with such a branch of law more effectively than can either an English judge or the English Parliament—more effectively than a judge, because his powers would be wider; more effectively than Parliament, because he could more promptly and easily drop a provision which had proved inefficient, and try the working of a new one without purporting to make it a part of the permanent law of the land.

It follows from these considerations that some branches of the law are much more fit than others to be embodied in a code, and that the discussions, more frequent and more animated thirty years ago than they are to-day, as to the merits and drawbacks of codification, ought to have distinguished more carefully than they did between the adaptability to diverse departments of law of a system of rules enacted in a form intended to be final. We may hope to have some light upon this subject from the working of the new German Code. In any case, it may be suggested that a society 337in which the ideas and habits that relate to any one side of its life are changing—as for instance those relating to the civil status of women have changed in England during the last fifty years, or in which the methods of business are changing, as those relating to joint stock enterprise have changed both in England and America—does ill to stereotype in a form difficult to amend the particular legal rules which govern it at any given moment, however adequately that form may for the moment embody the substance of those rules.

338