XIV METHODS OF LAW-MAKING IN ROME AND IN ENGLAND

Introductory.

The relations borne by the growth and improvement of the law of a country to that of the constitutional development of that country as a State are instructive in many aspects—instructive where the lines of progress run parallel to one another, instructive also where they diverge. I propose in the following pages to consider them as they concern the organs and the methods of legislation at Rome and in England. The political side of this subject is a very large one, indeed too large to be discussed here, for it would involve a running commentary upon the general history of these two States. I will only remark that the inquiry would show us, among other things, the fact that the progress of Rome from a republic, half oligarchic, half democratic, to a despotism, did not prevent the phenomena which mark the evolution of its legislation from bearing many resemblances to the evolution of legislation in England, where progress has been exactly the reverse, viz. from a strong (though indeed not absolute) monarchy to what is virtually a republic half democratic, half plutocratic. The present inquiry must be confined to the legal side of the matter, viz. to the Organs and the Methods of Legislation regarded not so much as the results of political causes, but rather as the sources 248whence law springs and the forces whereby it is moulded.

The working of these Organs and Methods may be studied, and their excellence tested, with regard to both the aspects of law itself, its Substance and its Form. The merit of a system of Law in point of Substance is that it be righteous and reasonable, satisfying the moral sentiments of mankind, giving due scope to their activity, securing public order, and facilitating social progress. In point of Form, the merit of Law consists in brevity, simplicity, intelligibility, and certainty, so that its provisions may be quickly found, easily comprehended, and promptly applied. Both sets of merits, those of Substance and those of Form, will depend partly on the nature of the persons or bodies from whom the Law proceeds, that is the Organs of Legislation, partly on the Methods employed by those persons or bodies. But the merits of Substance open up a field of inquiry so wide that it will be better to direct our present criticism of Organs and Methods chiefly to those excellences or defects of the law which belong to its form. I propose to consider these as they worked in Rome, and have worked down to and in our own time in England, assuming the broad outlines of the legal history of both States to be already known to the reader, and dwelling on those points in which a comparison of Rome and England seems most likely to be profitable.

I. Law-Making Authorities in General.

First let us see what, speaking generally, are the authorities in a community that make the Law, and 249How—that is to say, by what modes or through what organs, they make it.

Broadly speaking, there are in every community two authorities which can make Law:—the State, i.e. the ruling and directing power, whatever it may be, in which the government of the Community resides, and the People, that is, the whole body of the community, regarded not as organized in a State, but as being merely so many persons who have commercial and social relations with one another. There is, to be sure, a school of juridical writers which does not admit that the people do or can thus make Law, insisting that Custom is not Law till the State has in some way expressly recognized it as such. But this view springs from a theory so incompatible with the facts in their natural sense, that a false and unreal colour must be put upon those facts in order to make them fall in with it. It is unnecessary to pursue a question which is apt to become merely a verbal one. Let it suffice to say that Law cannot be always and everywhere the creation of the State, because instances can be adduced where Law existed in a country before there was any State; and because the ancient doctrine, both of the Romans and of our own forefathers—a doctrine never, till recently, disputed—held the contrary. A great Roman jurist says, with that practical directness which characterizes his class, ‘Those rules, which the people without any writing has approved, bind all persons, for what difference does it make whether the people declare their Will by their votes or by things and acts^[106]?’ This is the universal view of the Romans, 250and of those peoples among whom the Roman law, in its modern forms, still prevails. And such has been also the theory of the English law from the earliest times.

Now the State has two instruments or organs by which it may legislate. One is the ruling Person or Body, in whom the constitution expressly vests legislative power. The other is the official (or officials), whether purely judicial, or partly judicial and partly executive, to whom the administration of the law is committed, and whom we call the Magistrate. This distinction does not refer to the instances in which legislative authority is, by an act of the Governing Power, specially delegated to some magisterial person or body. Those instances are really to be deemed cases of mediate or indirect legislation by the supreme Government (like the power given by statute to a railway company to make by-laws). The position of the Magistrate is different, because judicial administration, and not legislation in the proper sense, is the work he has been set to do.

Similarly the People have two modes of making Law. In the one they act directly by observing certain usages till these grow so constant, definite, and certain that everybody counts upon them, assumes their existence, and feels sure that they will be recognized and enforced. In the other they act indirectly through persons who have devoted themselves to legal study, and who set forth, either in writing or, in earlier times, by oral discourse, certain doctrines or rules which the community accepts on the authority of these specially qualified students and teachers. Such men have not necessarily either any public position or any direct commission from the State. Their views may rest on 251nothing but their own reputation for skill and learning. They do not purport to make law, but only to state what the law is, and to explain it; but they represent the finer and more highly trained intellect of the community at work upon legal subjects, just as its common and everyday understanding, moved by its sense of practical convenience, is at work in building up usages. So the maxims and rules these experts produce come to be, in course of time, recognized as being true law, that is to say, as binding on all citizens, and applicable to the decision of disputed questions.

Taking then these four Organs or Sources, we find that one Source—the People, as makers of Customary Law—is so vague and indeterminate that one can say little about it as an Organ, though the process by which Custom makes its way and is felt to be binding is a curious process, well deserving examination. Two remarks may however be made on it. The first is this, that it is essential to the validity of a rule claimed to have been made by Usage that it shall possess a certain extension in Time and a certain extension in Space. It must have prevailed and been observed for so long a period that no one can deny its existence. It must have prevailed over so wide an area, that is to say, have been used by so many persons, that it cannot be alleged to be a merely local usage, unknown outside the locality, and therefore not approved by the tacit consent of the community at large. (The size of the area is of course in each case proportioned to the size of the whole community. A custom observed by a population of a few thousand people in a canton of Switzerland may make the custom law for the canton, though observance by a 252similar number would not make a similar custom law for a large country like Bavaria.) The other remark is that sometimes the observance of a custom by a particular class of the community, as for instance by agriculturists or merchants, may suffice to establish the rule for the community at large^[107]. This happens where the custom is by its nature such that only agriculturists or merchants (as the case may be) would need to have a custom on the matter at all. Universality of practice by them is then sufficient to make the custom one valid for the whole community, which may be taken to have tacitly approved it. Sometimes, however, the usage of a particular class is deemed to become law by its being imported as an implied condition into legal transactions, especially contracts, entered into by members of that class; and this view has been frequently taken by our English Courts of mercantile usages, which they have in the first instance enforced rather as unexpressed elements in a contract than as parts of the general law. It need hardly be added that the fact that the meaning and extent of a rule of Customary Law are often uncertain, and give rise to judicial controversy, does not prevent the rule itself from being valid previous to its determination in such controversy, for this is exactly analogous to a disputed question regarding the interpretation of a statute. Though the meaning of a statute may have been doubtful until determined by the Courts, the statute was operative from the first, and is rightly applied to ascertain the validity of rights which accrued before its meaning was determined.

253We have thus to examine three Sources of Law—the Governing Person or Body, the Magistrate, and the Jurists or Legal Profession. These are the three recognized and permanent legislative organs of a community. Every mode of creating law discoverable in any organized community may be reduced to one of these, and in most civilized communities all of these may be found co-existent. Sometimes, however, one or other is either absent or is present in a quite rudimentary condition. In the East, as for instance in such countries as Turkey or Persia, there is little that can be called general legislation. Hatts are no doubt occasionally promulgated by the Sultan, though they are sometimes not meant to be observed, and are frequently not in fact observed. So far as new law is made, it is made by the learned men who study and interpret the Koran and the vast mass of tradition which has grown up round the Koran. The existing body of Musulman law has been built up by these doctors of law during the last twelve centuries, but chiefly in the eighth and ninth centuries of our era: and a vast body it is. The Kadi or judge is himself a lawyer, and he might mould the system by his decisions, but decisions are not reported, and the authority of a Kadi is deemed lower than that of one of the more learned Muftis or doctors of the law. On the other hand there are countries, such as Russia for instance, where the direct promulgation of his will by the Sovereign is the only recognized form of legislation, the decisions of judges and the opinions of legal writers enjoying a much lower authority. In other countries, as in Germany, legal writers are numerous and influential, 254but the magistrates, their decisions having been but little reported, have, till our own time, held for the most part a subordinate place, and played a comparatively small part in the development of law. This was at one time the case in France also, where cases decided by the higher courts of law used to stand little, if at all, above treatises composed by legal writers of established reputation. Nowadays, however, cases are more fully reported, and an authority is accorded to decisions scarcely lower than that which they have long enjoyed in England and America.

At Rome, and also in England, all these three main Sources or Organs have existed in full force and efficiency, though not in equal efficiency at different periods in the history of either State. At Rome, as in England, we begin with customary law. The customary law of the Quirites is known to and administered by a small privileged class; and so far as there is any legislation at all, it is the work of members of this class who carry in their minds and expound and insensibly amplify the sacred traditional ordinances. Then direct legislation by the people in their assemblies, and afterwards (though in its germ perhaps almost concurrently) the law-making action of the magistrate begin to appear. They go on hand-in-hand for many centuries, seconded by the never intermitted labours of the jurists, until at last the magistrate’s work is over, the jurists have lost their impulse or their skill, and the direct activity of the Sovereign (who is by this time a monarch) becomes the chief surviving fountain of law. I propose to take these three sources and compare the way in which they acted in the Roman city and Empire with their action 255and development—in many respects parallel, in a few respects contrasted—in England, whose law has now spread over a large part of the British Empire.

II. Jurists as Makers of Law.

Let us begin with the Jurists, since they are the first repositories and interpreters of those customs out of which law grew. One may distinguish three stages in their attributes and their action at Rome. In the first stage, during the days before the enactment of the Twelve Tables, and even after that date down to the third century B.C., they were a small body of men, all of them patricians, and some of them priests, retaining in their memory and transmitting to their disciples a number of rules and maxims, often expressed in some carefully phrased and scrupulously guarded form of words, such as the lex horrendi carminis, which Livy quotes in his account of the trial of Horatius for killing his sister^[108]. An important place among these rules was held by the formulas which it was necessary to use in actions or other legal proceedings, the slightest variation from the established phraseology of which would be a fatal error. Such knowledge, with the connected knowledge of the days on which ancient superstition forbade or permitted legal proceedings to be taken, was in these early times strictly reserved by its possessors to their own class, as a sacred deposit of political as well as religious importance.

In the following period, which may be said to extend till the end of the free Republic, these restrictions vanished. The progress of the plebeians in political 256power as well as in wealth made it impossible to exclude them from the possession of legal lore. Some plebeians became no less distinguished as sages of the law than patricians had been; indeed Tiberius Coruncanius, the first plebeian chief pontiff, is occasionally described as the founder of the later school of scientific lawyers. He is said to have been the first person who offered himself to the public as willing to advise on legal questions. The profession attracted many able and ambitious men, because it was one of the three recognized avenues to high office, the alternative to arms and to political oratory. One may fairly call it a profession in this sense, that those who adopted it made it the main business of their life, and by it won their way to fame and influence. But it was not such a profession as the bar is in modern countries, not a gainful profession whereby a fortune could be amassed, not a close profession into which entrance is granted only upon definite terms and subject to definite responsibilities. Any man who liked might declare himself ready to give legal advice or settle legal documents. He had no examination to pass, no fees to pay, no dinners to eat. He acquired no right of exclusive audience of the Courts; he became amenable to no jurisdiction of his compeers or of any constituted authority. The absence of these things did not, however, prevent the Roman lawyers from having a good deal of what might be called professional feeling, a high sense of the dignity of their calling, and a warm attachment to the old forms and maxims of the law. These Republican jurists composed treatises, only a few scattered extracts from which 257have come down to us, and gave oral teaching to the disciples who surrounded them while they advised their clients, as they sat in state in the halls of their mansions.

With the fall of the Republic there begins a third period which covers about three centuries. It had been the custom for a man who had a point of law to argue before a iudex^[109] trying a case to endeavour to obtain from some eminent jurist an opinion in his favour, which he produced to the iudex as evidence of the soundness of the view for which he was contending. Now Augustus, partly to enlarge and inspirit the action of the jurists, partly to attach them to the head of the State, permitted certain of the more eminent among them to give responsa, i.e. answers or opinions on points of law, under and with his authority, directing such opinions, when signed and sealed, to be received by a iudex trying a case as settling a controverted point. His successor, Tiberius, issued formal commissions to the same effect^[110]. Here we enter the third stage, for from this time forward not only did it become obligatory on the iudex to defer to an opinion given by one of the ‘authorized’ jurists, but there was also created an inner privileged order within the whole body of jurists, this inner order consisting 258of those, usually no doubt the most conspicuous by learning and ability, who had obtained the imperial authorization. And out of this privileged class the Emperor was apparently accustomed to choose the great judicial officers of state, the praetorian prefect—in later times the quaestor also—the members of the Imperial Council, and possibly the chief judicial magistrates of the provinces, so that the career of a jurist continued to be, though in a somewhat different form, one of the main paths to distinction and power. Oratory, which had formerly swayed the people, was now practically confined to the Senate and the Law Courts, and thus became separated from politics: for even in the Senate few ventured to speak with freedom. As the profession of law was now the chief rival to the profession of arms it drew to itself a large part of the highest ability of the Empire. After the great decline in literature and art which marks the period of the Antonines, the standard of learning, acuteness, and philosophical grasp of mind among the jurists still continued to be high. Even their Latin style is more pure and nervous than we find among other writers of the third century. The period of their productive activity—that which we commonly call the classical period of Roman Law—may be said to close with Herennius Modestinus, who was praetorian prefect about the middle of the third century of our era. Thereafter we possess only a few names of notable jurists, scattered at long intervals, and apparently inferior to their predecessors.

Although throughout these three periods the jurists may fitly be described as a Source of Law, their function was by no means the same from the beginning till the end. 259In the first period they were the depositaries of a mass of customs which changed very little; and they did not so much create law as give a definite shape and expression to it in the carefully phrased rules and unvarying formulas which each generation handed down to the next. The events and circumstances of the second period, which saw the knowledge of the old customs much more widely diffused, and saw also a considerable growth of statute law, threw upon them the duty of expounding both customs and statutes, and of covering the ground which neither customs nor statutes had occupied. This meant a good deal in a thriving and expanding community, so the interpretatio iuris (as the Romans call it) which they describe as the chief service rendered by these legal sages, became large in quantity, though it was almost entirely confined to the filling up of interstices, and did not attempt to produce new principles or lay down broad rules. Its authority, moreover, was a purely moral authority, based upon nothing but the respect paid to the intellect and learning of the particular jurist from whom some doctrine or dictum emanated, regard being of course had to the length of time during which, or the approval of the profession with which, a doctrine or dictum had been accepted. With the introduction in the third period of a specific commission from the Emperor, the jurist, that is the authorized jurist, became recognized as competent to make law (iuris conditor). He acted only by interpreting, i.e. by delivering an opinion on a point previously doubtful, but his decision, once given, had an authority independent of his personal fame, the authority of the Emperor himself, by this time a source of law 260through the magisterial powers conferred upon him for life. Let us note further, that whereas in the earlier part of the second period it was largely through the modelling of the system of actions and pleading that the influence of the jurists was exerted, in the later part of that period and during the whole of the third, it was chiefly by means of their writings that they developed the law. Most of these writings were the work of men who enjoyed the ius respondendi; yet some of those who belong to a time before that right began to be granted carry no less weight. Antistius Labeo does not seem to have enjoyed it, but he is always quoted with the greatest respect, and it seems doubtful whether it was possessed by Gaius, who was, centuries after his death, placed among the five most authoritative writers.

It does not here concern me to enlarge upon the labours of the great legal luminaries of the earlier Empire, either as writers of treatises (it is in this capacity that we know them best, from the fragments of their works preserved in Justinian’s Digest ) or as advisers of the Sovereign, assessors in his supreme Court of Appeal, and prompters of his legislative action. For the present purpose it is sufficient to suggest some reasons which may account for the more considerable part which the Roman jurists played as a source of law than that which can be attributed to legal writers in England. Though some few of our English treatises are practically law, constantly cited and received as authorities—Coke upon Littleton supplies an example from former times, and Lord St. Leonards on Vendors and Purchasers from our own—they are not to be compared in point of quantity or 261importance with the text-books out of which Justinian’s compilation was framed. In earlier days it was no doubt different. The writings of Glanvill and Bracton, with the book ascribed to Britton and the treatise called Fleta, were all to some extent recognized as law in the fourteenth century; that is to say, they would have powerfully, and in most doubtful cases decisively, influenced the mind of any judge to whose knowledge they came when he had to determine a point of law. In that age there was no such distinction drawn between what is and what is not legally binding as the wider experience and the more precise analysis of modern times has made obvious to our minds. Moreover, in an age when customs were still uncertain, because largely fluid and imperfectly recorded, the statement of what a writer held to be law had an incomparably greater force than in later days. And it may be added that the extracts from the Roman Law, of which Bracton’s treatise, for instance, is full, would, at least to the ecclesiastical lawyers, carry with them the authority of the Roman law itself. After the fifteenth century, comparatively few books hold a place of authority; and perhaps the best example of those which do is Littleton’s Treatise on Tenures . By this time the abundance of reported cases began to make it less necessary to have recourse to treatises; nor was the writing of them a favourite occupation of the earlier common lawyers.

III. Difference between the Action of Roman and that of English Jurists.

What are the causes of this singular difference between the course of legal development in England 262and that which it took in Rome? The most obvious is the different position in which the imperial commission placed certain of the more eminent jurists. They were thereby practically erected into legislators, for their formally expressed opinions were treated as though proceeding from the Emperor himself, and the Emperor was from the first virtually, and afterwards technically also, a fountain of legislation. True it is that this authority was not at first extended to the treatises of these jurists. It attached, at least in earlier days, only to the responsa which they had authenticated by their seal, and a responsum probably carried authority only for the particular case in which it was delivered. But nothing was more natural than that its weight should be accepted for all purposes, and that the utterances of the privileged jurists, whether contained in a collection of responsa or in any other kind of law-book, should command a deference seldom yielded to any private writer, however eminent. Nor does the fact that both in their responsa and in their other writings these jurists differed from one another, maintaining opposite views on many important points, seem to have substantially detracted from their influence. Such divergences were indeed, down to Justinian’s time, a source of embarrassment to practitioners and judges. Looking at the thing as a matter of theory, we may wonder how the inconvenience could have been borne with, for unless a statute was passed settling a controverted point, the point might remain always controvertible. But this is one of the many instances in which we find that a system which seems, when regarded from outside, 263unworkable, did in fact go on working. Probably, when the controversy was one of importance, there came after a time to be a distinctly preponderating view, which practically settled it; and possibly the sense of responsibility under which the authorized jurists wrote contributed to make them not only careful but guarded and precise in the statement of their conclusions.

Another cause for the greater relative importance of the Roman jurists as creators or moulders of law may be found in the social position of the legal profession at Rome. In England the profession is and always has been followed primarily as a means of livelihood. Out of the many who have failed to find it remunerative, some few have devoted themselves to study and have enriched our jurisprudence by valuable treatises. But the general tendency has been for the men of greatest mental vigour and diligence, and also for the men of the widest practical legal experience, to be so completely absorbed by practice as to have no leisure for the composition of books. English law-books are written mostly by young men who have not yet obtained practice, or by older men who through the negligence of Fortune, the undiscernment of solicitors, or perhaps some deficiency in practical gifts, have never succeeded in obtaining it. In some remarkable instances they are the work of persons whose eminence has raised them to the judicial bench. But they are hardly ever written, and indeed could scarcely be written, by the men in full practice, yet such men have the great advantage of being in daily contact with the working of the law as a concrete system, and they 264include, not indeed all, but a great part of the best legal talent of each generation. At Rome, however, the jurist of republican days, making no gain from his professional work, and not needing it, for he was a man of rank and means, took practice more easily, and devoted a good deal of his time to the literary side of his life. Thus we are told that Labeo spent half his year in Rome giving instruction to his disciples and advice to his clients, the other half in the country composing his admirable treatises. Under the Empire the profession doubtless attracted a large number of persons of lower station and smaller means. But the habit of writing and of teaching went on among the leaders.

In this habit of teaching we may find a further reason for the prominence of the jurist. The giving of oral instruction in law to those who were preparing themselves for its practice, was at Rome always an important branch of a jurist’s activity. Cicero tells us how he and others among the youth of his own generation stood as disciples round the chair of Mucius Scaevola, gathering the crumbs of legal wisdom which dropped from his lips, putting questions and doubtless taking notes of the explanations which the sage deigned to give. Other leading luminaries were surrounded by similar groups. Two centuries later, Gaius is generally thought to have been a teacher of law, and won his high reputation largely by the educational treatise which has come down to us. And in still later times the two great law schools of Beyrut and Constantinople were the chief homes of legal learning, and those who lectured in them among the chief legal lights of the 265Roman world. Four members of the Commission which prepared the Digest were chosen by Justinian from among these teachers, and given the place of honour next after Tribonian, the president of the Commission. In England, on the other hand, legal teaching had during the last century and a half fallen sadly into abeyance, and has only within the last few years shown signs of reviving. Yet it is clear that the practice of teaching is of the utmost value for the composition of treatises, not only because it supplies a motive and an occasion, but also because it tends to make a book more systematic and lucid, since the teacher feels in lecturing the paramount necessity of logical arrangement and of clear expression. The best survey, at once concise and comprehensive, of English law that has ever appeared—Mr. Justice Blackstone’s book—was founded on oral lectures given in Oxford: and the great works of Chancellor Kent and Justice Story in America had a like origin. The merits of these two last-named writers are just the kind of merits which the habit of teaching tends to produce. Nor ought we to forget a more recent example, the small but eminently acute and suggestive volume of lectures on the Common Law of Mr. Oliver Wendell Holmes, now Chief Justice of Massachusetts.

The main cause of the smaller number in England of legal writers who have taken rank as Sources of Law, is doubtless to be sought in the fact that the highest juridical talent of the most experienced men has with us poured itself through a different channel, finding its expression in the decisions of the Judges. It is our series of Reported Cases, now swollen to 266many hundreds of volumes, a mass of law so large that few lawyers possess the whole of it, that really corresponds to the treatises of the great Roman jurists. The Reports fill a place in English legal studies corresponding in a general way to that which those treatises filled in the Roman Empire. They are the work of a similar class of men, those who from active practice have risen to the highest places in the profession. Men in such a position have rarely the leisure to occupy themselves with writing law-books, nor have they usually an impulse to do so, since what they have to say can be adequately delivered in their spoken or written judgements. And though the merits of our English judicial decisions are not altogether the same as those of the great Roman text-books, still the judgements of the most eminent judges will, if taken as a whole, bear comparison either with those text-books or with any other body of law produced in any country. In logical power, in subtle discrimination, in breadth of view, in accuracy of expression, such men as Lord Hardwicke, Lord Mansfield, Lord Stowell, Sir William Grant, Mr. Justice Willes, Sir George Jessel, Lord Cairns, and Lord Bowen, to take a few out of many great names, may fairly rank side by side with Papinian or Ulpian, with Pothier or Savigny.

This is not the place for an attempt to estimate the respective advantages of case law and text-book law. But it may be remarked that they have more in common than might at first sight appear. English text-books are almost entirely a collection of cases with comments interspersed. Sometimes a general rule is stated which may go a trifle further than the 267cases do; sometimes an opinion is thrown out on a point not covered by authority. Still the cases are the gist of the book. I have heard an eminent judge^[111] of our own time observe that the easiest way to codify the law of England would be to enact that some eight or ten established text-books, such, for instance, as Jarman on Wills, Chitty on Contracts, Williams on Executors, Lindley on Partnership, Smith’s Mercantile Law, Sugden on Powers, Smith’s Leading Cases, Hawkins on the Interpretation of Wills, Dicey on Domicil, should have the force of statutes. To do this would add little to the volume of the existing English law, for the text-books mentioned are in reality digested summaries of decisions that lie scattered through the Reports. And similarly the treatises of the Roman lawyers contain a large number of cases, i.e. opinions given by eminent lawyers upon sets of facts laid before them or imagined by them in order to show the application of a principle. The Romans themselves attribute high authority to a concurrent line of decisions^[112]; and doubtless decisions given by magistrates or by emperors found their way into, and influenced the text-books, though we do not know what means were taken of recording them. In fact the difference between the English and the Roman system resides chiefly in two points. With us the binding force of a rule depends on its having been actually applied to the determination of a concrete case. With the Romans an opinion delivered in a res iudicata is not necessarily weightier than if it was delivered in any other way. It is valid simply because it proceeds from a high juridical authority. Probably in early imperial 268days there was a difference between the force of a jurist’s responsum signed, sealed, and produced to a iudex, and an opinion expressed in any other way by the same jurist, like our distinction between so much of a judgement as is needed for the decision of the case and the accompanying obiter dicta. But any such difference seems to have presently disappeared. And secondly, while the opinions on points of law of English jurists are scattered here and there over hundreds of volumes, with only a chronological arrangement, those of Roman jurists were gathered into systematic treatises.

The Roman system has the merits of logical arrangement, of consecutiveness, of conciseness; the English, wanting these, has advantages in being so copious as to cover an immense variety of circumstances, and in consisting of opinions delivered under the stress of responsibility for doing justice in the particular case. It presents moreover to students an admirable training in the art of applying principles to facts. Both systems have the defect of uncertainty, because under both there may be a conflict of views resting on equal authority. Broadly regarded, both may be said to spring from the same source. According to German writers, the law made by the jurists springs from what these writers call the ‘legal consciousness of the people,’ and derives its ultimate authority from Custom, i.e. from the tacit acceptance by the people of certain doctrines and rules. We in England dwell upon its formal recognition by the Courts as the proof of its authority. But in both cases that which becomes recognized as law has passed through and been shaped in the workshop of Science. It is the learning and skill of trained professional 269students, whether English judges or Roman text-writers, that has done the work which the people, or the Courts for the people, have accepted.

IV. Magistrates and Judges as Makers of Law.

We come now to consider the second of the three great sources of law, the Official or Magistrate. He holds an intermediate place between the Jurist on the one hand, and the Supreme Power, whether an Emperor or a Parliament, on the other, speaking with more of plenary authority than the former and with less than the latter. He may at first sight appear to be not really a species by himself, but merely a particular instance of legislation by the Supreme Power in the State, acting not directly (i.e. not as itself enunciating legal rules) but mediately, by delegating its function of legislation to a person clothed with its authority and speaking in its name.

This view has in fact been held by some writers. That it is, however, an erroneous view will appear, when we come to scrutinize the Roman facts as the Romans understood them, and the English facts as they were understood in the fifteenth century. Delegation by the supreme legislative authority to some officer or magistrate no doubt may, and frequently does, take place. In England, for example, Acts of Parliament sometimes commit the duty of making rules to an official, such as the Lord Chancellor, or to such a body as the Council of Judges of the Supreme Court of Judicature, or to the Privy Council, that is to say, to a Minister advised by his permanent official staff, who 270procures the approval of the Crown in Council to what he issues in the form of an Order in Council^[113]. Where the function is so delegated, the rules or ordinances made in pursuance of the statute have the full force of the statute that gave power to make them. Here the phenomenon is too common and too simple to need explanation or discussion. It is quite another thing to maintain that the legislative action of the Magistrate is always of this character, a mere instance of the exercise of delegated power. The view is not historically true of the Roman Magistrate—Praetor, Censor, Aedile, or whatever else he may be, firstly because he did not in fact receive any such delegation from the people; secondly, because nobody supposed him to have received it. He was always distinctly conceived of as acting by his own authority, whatever that may be, a matter to which we must presently return. It is not true of the English Judge—whether of the iudices terrae of the Common Law Courts when they take shape in the twelfth and thirteenth centuries, or of the Chancellor of the fifteenth, or of indeed their modern successors, seeing that the theory of the English law and constitution has remained in these points, at least, substantially unchanged. That theory is that the judges of the Common Law Courts are nothing more and nothing less than the officers who expound and apply the Common Law, a body of usages held to be known to the people and by which the people live, usages which existed, in their rudimentary state, as far back as our knowledge extends, most of which have not been formally embodied in any legislative 271act, but which have been always recognized as binding. Such customary rules are not law because they are declared to be so by the judges; on the contrary the judges enforce them because already, antecedently to their decision, binding law. The judges have never received delegated authority from Parliament. So far as authority has been delegated to them it is the authority of the Crown. But the Crown cannot empower them, and never purported to empower them, to make the law. This is abundantly clear regarding the Common Law Courts, who are merely the exponents of the customs of the land.

The case of the mediaeval Chancellor is rather different. He is rather more than an exponent of the law. He virtually creates law by his executive action. But he does not do so by any expressly delegated power. At a time when it was well settled that the Crown alone could not (except possibly in some few directions—and even this was not admitted by the House of Commons) legislate, Parliament, so far from giving even by implication any authority to the Chancellor, was jealous of and tried to fetter his action. To allege that what are called the legislative functions of any English judge arise from a commission given him by the Supreme Power, i.e. Parliament, to exercise them, is an inversion of historic truth and legal doctrine, an attempt to support a false theory by imaginary facts^[114]. It is easier and safer 272to look at our system in the aspect it bore to those who witnessed the earlier stages of its growth, and to recognize the existence of a peculiar form of law-making—that which naturally and inevitably arises out of the application and administration of the law, especially where that law is largely customary, not embodied in formal declarations of a sovereign’s will. If therefore we are to have a theory of the position of the Magistrate or Judge, a definition of his functions, we must rather call him (however vague the expression may appear to those who prefer the phantom of precision to the substance of truth) the recognized and permanent organ through which the mind of the people expresses itself in shaping that part of the law which the State power does not formally enact. He is their official mouthpiece, whose primary duty is to know and to apply the law, but who, in applying it, expands it and works it out authoritatively, as the jurists do less authoritatively. He represents the legal intelligence of the nation, somewhat as upon one theory of papal functions the bishop of the old imperial See represents the religious intelligence and spiritual discernment of the Christian community on earth; and therefore, like the Pope, he represents the principle of that development which it is his function to guide. As the Romans call their Praetor the living voice of the law, so is the Magistrate always, in England as at Rome, the voice whereby the people, the ultimate source of law, shape and mould in detail the rules which seem fitted to give effect to their constant desire that the law shall be suitable to their needs, a just expression of the relations, social, moral, and economic, which in fact exist among them. The 273Magistrate is by no means their only voice, for they also express themselves, especially upon urgent questions, by direct legislation; and the more they get accustomed to do so, the narrower does the province of the Magistrate become. But there are many things which legislation cannot do in the earlier stages of a State’s growth, partly because proper machinery is wanting, partly because political dissensions intervene, partly because legal ideas are still fluid, fluctuating, and unfit for expression in terms at once broad and definite. Moreover, in even the most highly organized States, some things always remain which a legislature cannot conveniently deal with, or where its action needs to be constantly supplemented, and perhaps even corrected, by some organ which can work in a more delicate and tentative manner.

So much—that I may not further illustrate what will become clearer from a survey of the Magistrate as he has appeared in history—may be said of Legislation by a State Official in general, whether he be a Roman Magistratus or an English Chancellor. Now let us come to the Roman Praetor.

In the early days both of Rome and of England the administration of justice belonged to the chief magistrate of the State and to the assembly of the people, who in the very earliest days had normally acted together. In England, although the judicial functions of the Assembly survived for some purposes (as they survive to-day in Parliament), the conduct of ordinary judicial work which could not conveniently be exercised by the Assembly passed to the king, and when judges appeared, they were his officers. In Rome also the king was the head 274of the judicial system: and when the kingly office was abolished, the functions that had been his were transferred to the two Consuls, who were virtually annual kings. After a time, owing to political disputes which need not be described here, a third annual magistrate was added, called the Praetor^[115], who, while capable of exerting nearly all the executive power of the Consuls, received the administration of justice as his special province. As the city grew and litigation increased, more Praetors were added. The first had been appointed in B.C. 367; the second, who presently became charged with suits in which one or both of the parties did not enjoy Roman citizenship, dates from about B.C. 247. He came to be called Praetor peregrinus, while the original Praetor was described as the Praetor of the City (urbanus). The latter remained the head of the judicial system, and I shall therefore speak of the Praetor in the singular. Other Praetors were added, partly in order to act in the provinces, partly in order to undertake special kinds of jurisdiction. By the time of Trajan there were eighteen of them.

In the later republican period we may speak of the Praetor as being partly a Judge, partly a Minister of Justice who directed the general working of the Courts. It was his duty to issue when he assumed office a statement of the rules by which he intended to guide his judicial action during his year, as well as a table of the formulae in which applications ought to be made to him for the exercise of his functions. These rules were published 275in a document called the Edict. It contained a concise statement of the cases in which he would allow an action to be brought, and of the pleas which he would admit as constituting defences to actions. This statement did not purport to supersede the old actions and rules which had either come down as a settled part of the ancient customary law, or had been enacted by any statute of the popular assembly. The Praetor always held himself to be bound by statutes^[116]. But his Edict added materially to the old actions and rules, incidentally modified them, ultimately did supersede many of them. He awarded remedies which the older law had not awarded. He recognized defences (e.g. in cases of fraud) which the old law had not recognized. He provided means of enforcing rights more effective than those which the old law had provided. As the later Romans said, he acted for the sake of aiding, or supplying the omissions of, or correcting, the old strict law, with a view to the public advantage^[117].

Each Edict was valid only for the Praetor’s year of office. Each succeeding Praetor, however, usually repeated nearly all the declarations that had been contained in the Edicts of his predecessors, though it often 276happened that a new Edict introduced some improvement in point of form and expression, or perhaps so varied, or added to, the announcements in the last preceding Edict as to introduce an improvement in substance, for when a Praetor thought that it was necessary to promise a new remedy by action, or to recognize a new plea, it was his duty to insert it. In this way the practice of the Courts was continually changing, yet each single change was so slight that the process was very gradual, hardly more rapid than that which has gone on, at certain periods in the history of English law, through the action of the Court of Chancery, or that which went on in the Court of King’s Bench under Lord Mansfield. There was no permanent enactment of a new rule, for a Praetor’s declarations bound himself only and not his successors^[118]. But as his promises were usually repeated by his successors, a Praetor when he promised a new remedy, practically created a new right, or enlarged and confirmed an old one.

To us moderns the function thus committed to a Magistrate seems a large function, and his power a possibly dangerous power. No modern constitutional State would vest such a power either in a Judge or in a Minister of Justice. But to the Romans the Praetor is (above all things) the representative of the 277Executive and Judicial Power of the State. He is the State embodied for certain purposes. He is something more than a mere minister, whom the people have chosen to serve them in a certain capacity. He represents the majesty of the State over against the people, and deals with them rather as a Ruler than as a Servant. Few nations have formed so strong and definite a conception of State power as the Romans did; and none, perhaps, expressed it so distinctly in the authority, very wide, very drastic, and yet eminently constitutional, which they entrusted to their great State officials. The conception was to them so dear, or so necessary, that even when the misdeeds of a monarch had led to the abolition of monarchy, they did not restrict the magisterial power itself, but divided it between two co-ordinate magistrates whose co-existence made each a check on the other; and when the powers of these two (the Consuls) were subsequently found to need limitation, they devolved upon other magistrates (the Tribunes) the right to step in and check the exertion in some particular instance of the consular power.

The Praetor, therefore, having (like the Consul) imperium (i.e. the power of issuing commands as an executive officer, and of compelling obedience to them by putting forth material force), is a stronger personality than the English Common Law Judge, and can act more boldly and more effectively. We hear of no demand for a restriction of his functions, but only of a statute which checked arbitrary discretion by requiring him to administer the law in accordance with his Edict. Moreover, while the English judge is, down till the Revolution, an official removable by the Crown, the Praetor 278has no one over him, and has, therefore, not only a more unfettered discretion in carrying out his judicial and quasi-legislative mission, but also a clearer sense of his duty to do so, because this is the function which the nation expects him to discharge. The English Judge is primarily a judge, appointed to pronounce a decision: the Praetor is also an executive magistrate, placed at the head of the whole judicial administration of what was originally a small community, with the duty of providing that the system works properly. His wider powers give him a sense of the obligation laid on him to see that justice is duly done, that the system of procedure is such as to enable justice to be done, that wrongs for which there ought to be some remedy have some remedy provided against them; in short, that the law as a machinery for setting things right and satisfying the demands of the citizens is kept in proper order, with such improvements and extensions as the changing needs of the nation suggest. His business is not merely to declare the law but to keep the law and its machinery abreast of the time.

The functionary who in England offers the nearest analogy to the Praetor, an analogy which has been so often remarked that only a few words need be spent on it, is the Chancellor. The Chancellor of the fourteenth, fifteenth, and sixteenth centuries was the organ of the prerogative of the Crown on its judicial side, and as that prerogative was then very wide, he was thus invested with an authority half judicial, half administrative, not unlike that of the Roman magistrate. As it belonged to the Crown to see that justice was done throughout the realm, and the means for doing it provided, the 279Chancellor was expected and obliged to supply new machinery if the old proved inadequate, and this he did in virtue of an authority which, in its undefined width and its compulsive power, resembled the Roman imperium. Accordingly when the development of the Common Law Courts stopped in the fourteenth century because the Common Law judges refused to go beyond the remedies which the Courts provided, and made only a limited and timid use even of their power of issuing new writs in consimili casu, the Chancellor went on. From the time of Edward the Third petitions to see right done, which had been previously addressed to the Crown, began to be addressed to the Chancellor, and the extraordinary range of his powers was expressed by the phrase that he acted in matters of the King’s grace and favour, that is to say, he acted where the subject could not demand a remedy as of common right from the ordinary Courts of the land. Thenceforward the range of action of the Common Law Courts did not so much need to be extended, though a certain slight measure of development continued in them even as late as the days of Lord Mansfield, whose extension of the scope of the ‘Common Counts for money had and received to the use of the plaintiff’ has a faint flavour of praetorian methods. It was partly because the Common Law judges had halted that the Chancellor, if I may use a familiar expression, took up the running, and exerted the powers which the sovereign entrusted to him, and which, as keeper of the sovereign’s conscience, he was held to be justified in exerting so as to provide fresh and efficient remedies for wrongs that defied either the rigid system of procedure or the feeble 280executive capacity of the Common Law Courts. During this period the Chancellor, though a judge, is also much more than a judge, and it is as a great executive officer, clothed with the reserved and elastic powers of the sovereign, that he is able to accomplish so much. Yet his action is not so free as was the Praetor’s, for he does not directly interfere with the pre-existing Courts. He may walk round them: he may forbid a plaintiff to use the judgements they give; but he cannot remould their methods nor extend their remedies. The Praetor, on the other hand, is in a certain sense the head of all Courts, so that his action covers the whole field of law. After a time, however, the creative energy of the Chancellor slackens, partly because the prerogative of the Crown was being narrowed, partly, apparently, from the example of the other Courts, for when Chancery decisions also began to be reported like those of other tribunals, he naturally felt himself more and more fettered by the record of the decisions of his predecessors. In the eighteenth century, precedents gather round the Chancellor and fence him in: he cannot break through so as to move freely forward on new lines of reform. He is like a stream which, as it deepens its channel, ceases to overflow its banks.

Before I note a further point of difference between the Praetor and our English Judiciary, and a further reason why the development of the law by the latter was so much less bold, I must advert to one feature which the Roman and English systems have in common. In both law is made through the control of procedure. The Praetor promises to give a certain action, or allow a certain defence, in certain states of fact; i.e. if a plaintiff 281alleges certain facts, the Praetor will allow him to sue, and will see that judgement is given in his favour should those facts be proved, while if a defendant alleges certain facts, the Praetor will allow these to be set forth in a plea, and will see that judgement is given in his favour if the facts as stated in the plea are proved. Similarly the English Courts are concerned not with abstract propositions of law, but with remedies. It is by granting a remedy, i.e. by entering judgement for the plaintiff or the defendant in pursuance of certain reasons which they deliver publicly, that the Courts become sources of law. And though the Chancellor goes further than the Common Law Courts, because in the early days of his action he laid hold of a person under circumstances to which no rule of law had been previously declared to apply, and compelled him to appear as defendant in a suit, yet the Chancellor also never delivers a legal opinion except for the purpose of explaining the decree which he issues for adjusting the rights of the parties to a concrete dispute. So far, therefore, the Roman and the English officials moved on similar lines. Both were concerned with remedies; both acted through their control of procedure.

V. The System of Praetorian Edicts as compared with English Case Law.

Now, however, we arrive at a material difference between the Roman and the English Magistrates. The English judge never goes beyond the concrete case which is before him. If he declares the law, he declares it by deciding on the particular question which 282has arisen between two individuals. He may incidentally, if so minded, deliver a lecture on the law bearing on the subject, and may pass in review all the cases cited in argument. Still, his judgement is not intended to go beyond what is absolutely necessary for the settlement of that question, and his view of the law is not authoritative so far as it strays into cognate but distinct topics. It is only the ratio decidendi that can be quoted as an authority. No dictum thrown out incidentally is of binding force; and those who in the future have to deal with his decision are often able to narrow down the ratio decidendi to a very fine point, and show that it turned so much on the special facts of the case as to be of little importance as a precedent. But the Praetor speaks generally. In the Edict which he issues at the beginning of his term of office he lays down a rule, intended from the first to be applicable to a large class of cases; or, to speak more exactly, he makes a promise and announces an intention of dealing with a large class of instances. If the class were not a large one, he would not think it worth while to announce such an intention. He is thus led to take much more bold and conspicuous steps, and he may effect at one stroke a larger reform than any single decision of an English Court can ever cause. He is far more distinctly aware of the fact that he is, though not formally legislating, yet taking action which may have the effect of changing the substance of the law.

In other respects also, the fact that the Praetor’s changes are formally enounced in his Edict potently and beneficially influenced his reforming action. He was obliged to generalize and summarize. Where he 283had to set aside an ancient rule which had begun to be mischievous and deserved to be obsolete, instead of merely nibbling away at the edges of it as our English judges were apt to do, he dealt with it in a broad and intelligible way, either superseding it altogether or laying down certain marked exceptions in which he declined to follow it. When he was establishing a new rule he had to consider how wide a field he desired to cover, what sets of instances were to be provided for, what was the common principle underlying those instances, how that principle must be expressed so as fairly to include them without including others which he had no wish to touch. The chief merit of a rule of law is that it should seize a feature which a large set of instances really have in common, and should effectually provide for them and for them only. The Praetor was moreover at the same time driven to be terse in the formulation of his promises, because the Edict was by tradition a comparatively short document, observing that stern brevity which the famous example of the Twelve Tables had made familiar and excellent in Roman eyes. Thus the results of his reforming action, the advance made at each step in the development of the law, were always presented in a clear, a comprehensive, and above all a concise form, so that the profession perceived exactly what had been done, were able to take the Edict as a subject for commentary and elucidation, and as a starting-point for further improvements. It was thus that the jurists treated it, seconding while also controlling by their opinion the action of the chief magistrate. He draws with a bold yet careful hand the outlines of the picture. They fill in the details, and so 284work round and over each of his summary statements as to bring out more fully all that it contained and involved, to trace his principles into their consequences and to illustrate their application. The action of the jurists was as essential to him as he was to them, for while their advice often prompted him, and while their elucidations and teachings developed the meaning and contents of what he laid down, their criticism reprobated any hasty or inconsequent steps into which zeal or self-confidence might betray him. Nor did such criticism remain fruitless. For it will be remembered as another feature of the Roman edict-issuing system, and indeed one of its most singular features, that each Edict was issued by each magistrate for his one year of office only, and had no validity thereafter. This was so because he was not conceived to act as legislator, but only as an administrator whose commands, though they are not law in the strict sense, must be obeyed while his power lasts. At the end of the year they cease with that power, but his incoming successor may of course repeat them and give them another year of life, and so on from year to year and from generation to generation.

Thus the Edict, so far as it can be called legislation, is tentative legislation. It is an experiment continually repeated; an experiment whose failure is a slight evil, but its success a permanent gain. Suppose the Praetor Sempronius to have introduced a new sentence into his Edict, promising to give an action in a particular set of cases. The profession doubt the merit of the sentence, canvass it, observe how it works, and before the end of the year come to one of three conclusions. 285They may approve it, in which case it will doubtless be repeated in next year’s Edict. They may think it fundamentally wrong. Or thirdly, they may hold that though its object was good, that object has been sought in a wrong way. See then what happens if it has been disapproved. Next year a new Praetor—Cornelius—comes into office. In issuing his Edict he either omits altogether the obnoxious addition which Sempronius had made, or he so modifies it as to meet the objection which the jurists have taken. There is here none of the trouble, difficulty, and delay which arise when a statute has to be passed repealing another statute. There are not even those difficulties which occur under our English system when a case wrongly decided has to be overruled.

Observe how that English system works. A decision is given, perhaps hastily, or by a weak Court, which in a little while, especially after other similar cases have arisen, is felt by the bar and the bench to be unsound. There is a general wish to get rid of it, but it is hard to do so. People have begun to act on the strength of it; it has found its way into the text-books; inferior or possibly even co-ordinate courts have followed it; conveyances or agreements have been drawn on the assumption that it is good law. The longer it stands the greater its weight becomes, yet the plainer may its unsoundness be. Cautious practitioners fear to rely on it, because they think it may some day be overruled, yet as they cannot tell when or whether that will happen, they dare not disregard it. Thus the law becomes uncertain, and not only uncertain, but also needlessly complex and involved, for later judges, feeling the unsoundness 286of the principle which this mischievous case has established, endeavour to narrow it down as far as possible, and surround it by a set of limitations and exceptions which confuse the subject and perplex the student. The matter may have one of three ultimate issues. Either lapse of time and the unwilling acquiescence of subsequent judges put its authority beyond dispute, as Mr. J. W. Smith says of a famous old instance, ‘The profession have always wondered at Dumpor’s case, but it is now too firmly settled to be questioned in a Court.’ Or else, after a while, the point is carried to a Court of higher rank which has the courage to overrule the erroneous decision, and resettle the law on a better basis. Or possibly—though this but rarely occurs—a statute is passed declaring the law in an opposite sense to that of the unlucky decision. But it may be long before the second solution is found, partly because judges are chary of disturbing what they find, holding that it is better that the law should be certain than that it should be rational, and fearing to pull up some of the wheat of good cases with the tares of a bad case, partly because it may be a good while before a litigant appears willing to incur the expense of carrying the point to the higher and more costly tribunal. The third solution can be even less relied upon, for the legislature is busy and cares very little about the theoretical perfection of the law.

Even when the bad decision has been got rid of, a certain measure of harm is found to have been done. The authority of other cognate decisions may be impaired; transactions entered into, or titles accepted, on the faith of the case are shaken. One way or the 287other the law is injured. But on the Roman system these evils were, not indeed wholly, yet to a much greater extent avoided^[119]. Not only is the error of one Praetor easily corrected by his successor, but the occasion recurs year by year on which it must be either corrected or reaffirmed, so that a blemish is much less likely to be suffered to remain. If five or six successive Praetors have each of them in their Edicts repeated the provision introduced by one of their predecessors, men may confidently assume that it will be supported and perpetuated by those who come after, either in its original form or possibly in a more general form which will include its substance. There is no doubt some little temporary uncertainty during the first year or two, before the opinion of the profession has been unequivocally expressed. Such uncertainty can hardly be avoided in any system. But the fact that the Edict is annual gives ample notice that the provision is temporary and experimental, though, of course, fully valid during the particular year for which the Edict is issued. Thus the risk of mischief is reduced to a minimum.

Our data are too scanty to permit us to trace either the first beginnings of the Praetor’s action, or the details of its working, or the changes which must unquestionably have passed upon it during the three centuries and a half when its importance stood highest, say from the end of the First Punic War to the time of the Emperor Hadrian (B.C. 241 to 117 A.D.). 288Even of the Edict itself, in its latest and most complete form, we have only fragments, and do not know by what stages it was brought to the perfection which led to its being finally settled in a form never thenceforward altered. This took place under Hadrian, when Salvius Julianus, a famous jurist who was Praetor at the time, gave it the shape in which it became permanent, an Edictum Perpetuum in a new sense; it was then enacted by a Senatus Consultum, and in the form so enacted it was thereafter quoted and applied. Apparently, however, the effect of its enactment was not to make it a part of the general statutory law, but only to determine the form in which it was thereafter put forth by the magistrates. After that time such Edicts as were issued were special, containing declarations of the imperial will, usually addressed to particular circumstances. They were no longer Edicts in the old sense, but mere imperial constitutions.

It need hardly be said that under the Empire the action of the Praetor, like that of all other magistrates, had been liable to be directed or supervised by the Sovereign or his legal advisers. An interesting illustration of that supervision is worth mentioning, because it also brings into relief the fact that other magistrates, as well as the Praetor and Aediles, enjoyed the power of creating law by their action, which may be called either administrative or judicial, seeing that it united the two characters. Before the time of Augustus there had been no such thing among the Romans as the giving of an inheritance, or a legacy, by means of a Trust, i.e. by imposing on the honour and good faith of the person to whom property was left a legal obligation to 289hand it, or a part of it, over to some one else as the real beneficiary. The practice of asking such a person to carry out the testator’s wish had existed, but he could disregard the wish if he pleased. Augustus, however, on two occasions directed the Consuls (not the Praetor) to enforce such a request by their authority, thereby turning the moral into a legal obligation; and at the same time recognized an informal letter or writing (codicilli) as sufficient, where confirmed by a will, to impose a binding obligation on the heir. We are told that, in the latter case, having himself on one occasion performed what a testator had asked him, by way of trust, to do, he summoned a meeting of eminent jurists to advise him, and accepted the advice of Trebatius that the obligation should be held valid. These instances became the foundation of the extremely important changes which made the validity of Trusts, and that of codicilli, thenceforward a well-established legal doctrine^[120]. As the origin of Roman trust inheritances is due to the action of the magistrates, so English trusts owe their legal force to the Chancellor; and through the operation of the practice of creating them, coupled with the Statute of Uses (27 Henry VIII, c. 10), there grew up the modern system of conveyancing.

The merits of our English Case Law system are very great. It is an abiding honour to our lawyers and judges to have worked it out with a completeness and success unknown to any other country. They have 290accumulated in the Reports an unequalled treasure of instances, conjunctions of circumstances raising points of law far more numerous than the most active intellects could have imagined. These points have been argued with the keenness which personal interest supplies, and decided under that sense of responsibility which the Judge feels when he knows not only that his judgement is to determine the pecuniary claims or social position of suitors, but also that it is to constitute a rule which will be canvassed by the bench and the bar, and find its place in volumes that will be studied long after he has quitted this mortal scene. There is therefore a practicality about English Case Law, a firm grasp of facts and reality, as well as a richness and variety, which cannot be looked for in legal treatises composed even by the ablest and most conscientious private persons, who, writing in their studies, have not been enlightened by forensic discussion nor felt themselves surrounded by the halo of official dignity. If the treatises of the great Roman jurists do to a large extent possess these same merits, it is because they too were, in a measure, public officers, and because much of the law they contain arose out of concrete cases^[121].

The characteristic defects of Case Law which must be set against these merits are two. There is, first of all, its frequent uncertainty. As has been remarked already, one must always assume a certain percentage of ill-decided cases which it is hard to get rid of. And it may often happen that a particular point, which specially needs to be determined in the interests of legal science, 291remains for years, or even centuries, unsettled, because it is never brought before the Courts in a neat form which raises just the issue that wants settling. Sometimes it hardly matters which way the decision goes: the important thing is to have a decision, yet there is no means provided of getting one, unless by invoking the legislature, which is usually too much occupied with political controversies or administrative problems to care for settling such a point. And secondly there is the utterly unsystematic character from which Case Law necessarily suffers, and which it necessarily imparts to the whole law of the country. This defect is too familiar from everyday experience to need any illustration. It is the capital defect, one might say almost the only defect, of the law of England; and people have so long talked in vain about remedying it by means of a Code, that they have at last grown tired of the subject, and seem to be settling down into despair. I refer to it for the sake of pointing out how the institution of the Roman Praetor met a similar danger. The Romans had, to be sure, no great turn for scientific arrangement—their efforts at codification and the structure of their legal treatises show that—but the Praetor’s Edict had the immense advantage of presenting all the gist and pith of the newer law in a compact form, clearly and concisely set forth. The Edict thus became a centre round which the jurists could work, a point of departure for all further legislation, a main line of road running through the network of lanes, courts, and alleys that had been built up by a multitude of statutes and treatises. It was capable of being constantly amended and extended so as to take in all changes in the law, while 292yet retaining its own character; and it gave a unity, a cohesion, a philosophical self-consistency to the Roman law which it must otherwise have wanted even more than does our own. A German writer has somewhere remarked, in commenting on the crude and fragmentary character of the Roman Criminal Law, with whose development the Praetor had comparatively little to do, that the faults of that branch of legal science show how absurd it is to ascribe the merits of Roman jurisprudence to any special gift for legislation bestowed by Heaven on the Roman people. The excellence of their private civil law is (he observes) due simply to the fact that they had the good sense, or perhaps the good luck, to have provided in the Praetorship an office specially charged with the duty of constantly amending the law so as to bring it in accord with the growing civilization and enlarging ideas of the people. There is much truth in this. The Romans, however, did not invent their Praetor with any such conscious purpose. Their merit was that, when they saw him occupied in developing the law, they gave him free scope, and supported him in his beneficent work. He is a unique figure among the law-making organs of the nations. Since he is the choice of the people, he is able to do things which the minister of an absolute monarch might prudently shrink from doing; and the people permit him to retain his functions, even in days when the habit of directly legislating had so much increased that it might have been supposed that legislation would restrict or supersede his action. No modern republic would vest such power in an official, nor would any modern monarch be permitted by public opinion so to vest it.

293Nevertheless, though he belongs to a world which cannot return, the Praetor’s career may suggest to us that every civilized nation ought, in some way or other, to provide an organ representing its legal intelligence which shall mould and supervise the gradual and symmetrical development of its law. It may be suggested that all modern States do provide such an organ in their legislatures, whose business is largely, in some instances almost entirely, that of making law, and which presumably contain the most capable men whom the nation possesses. When we have considered the conditions under which legislatures work, as I propose now to do, we shall be better able to judge how far they fulfil the function which the Praetor discharged at Rome.

VI. Direct Legislation at Rome.

A. The Popular Assembly.

We have now compared the organs and the methods of legislation which existed in the Roman Republic and Empire with those of England, so far as relates to the action of the jurists, magistrates, and judges. Taking first the Roman jurisconsults and authors of legal treatises, it was suggested that their English analogues were rather to be found not so much in text-writers as in the judges, the result of whose labours is preserved in the vast storehouse of the Reports; while in considering the action of the Roman Magistrates, especially of the Praetor, in the creation of law, stress was laid on the advantages which the peculiar position of this great head of the whole judicial system presented for the gradual and harmonious 294development of legal rules, an advantage which the disconnexion of the Chancellor from the Common Law Courts did not permit in England. This led to an examination of the English method of developing and amending of the law by the decisions of the Courts, a method which, if it loses something in point of symmetry, has the advantage of providing an unrivalled abundance of materials for the determination of every question that can arise, and of subjecting each disputable point to the test of close and acute scrutiny.

We may now go on to examine another mode of creating law, that namely which proceeds immediately from the supreme power in the State, and which may, as contrasted with the indirect creation of law by jurists, or magistrates, be called Direct Legislation.

The organ of such direct legislation is the supreme authority in the State, whether such authority be a Person or a Body, whether such body be the council of an oligarchy or a popular assembly, and whether such popular assembly be primary or representative.

The method whereby Direct Legislation is enacted is the public proclamation (usually, and now invariably, but of course not necessarily) in writing by the Supreme Authority, of its will as intended to bind the citizens and guide their action. And the result is what we call Statute Law as opposed to Common Law. The distinction is a familiar one to both nations. The later Romans contrast Ius and Lex^[122]: we contrast Common Law and Statute.

295Let us first inquire what were, at different periods in the long annals of the Roman State, its various organs of direct legislation, and how each of them worked. It is of course only in outline that so large a subject can be treated.

The Roman State lasted 2,206 years—from the unauthenticated ‘founding of the city’ (for which I assume the traditional date of B.C. 753) down to the well authenticated capture of Constantinople by the Turks in A.D. 1453. Some would carry it down to 1806, and thus give it a life of 2,559 years, but the feudal Romano-Germanic Empire is such a totally different thing in substance from the Empire at Rome or at Constantinople, that although its sovereigns often claimed to legislate after the manner of Constantine and Justinian, nothing would be gained by bringing it and them within the scope of our inquiry. Now during this long period of two and twenty centuries, from Romulus to Constantine the Sixteenth, three such organs were successively developed. The first was the popular assembly of the citizens; the second, the administrative council of magnates and ex-officials; the third, the autocratic monarch. The first co-existed for a certain time with the second, the second with the third. The rights of the first and the second seem to have never been formally extinguished, even when the third had become in practice the sole source of law. Still we may, with substantial accuracy, limit the action of the first to the republican period, that of 296the second (so far as properly legislative) to the earlier two centuries of the imperial monarchy, while in later ages the third alone need be regarded.

As I am not drawing a historical sketch, but merely attempting to point out how each organ acted in producing law, I shall not stop to discuss any constitutional questions as to the rights or powers at various times of these organs respectively, but shall assume each to have been in its own day duly recognized as competent to legislate. That is the view presented to us by Gaius (writing in the second century A.D.) and in the Digest and Institutes of Justinian enacted in the sixth century A.D. The Emperor says, ‘The written law consists of statutes, resolutions of the plebs, decrees of the Senate, the ordinances of emperors, the edicts of magistrates, the answers of jurisconsults^[123].’ We have already considered the two latter, and have now the four former kinds of legislation to examine, all of which may be called, in a wide sense of the term, Statutes, i.e. declarations of the will of the State formally promulgated as law.

The legislative power of the Roman people was exercised, during the Republic, through three assemblies, those of the curies (this soon lost all practical importance), the centuries, and the tribes. Passing by the interesting and difficult questions as to the composition of these bodies, their respective functions, and the time when each may be said to have acquired or lost its 297authority, we may remark several features which they had in common, and which impressed a peculiar character on the laws that emanated from them. The differences between them do not affect the points to which I am going to call attention. All these comitia (literally, meetings) are Primary assemblies, that is to say, they are not representative bodies, but consist of the whole body of citizens, just like a Homeric ἀγορά, an Athenian or Syracusan ἐκκλησία, Frankish mallum, an Old English Gemot, an English seventeenth-century Vestry, a New England Town Meeting, an English Parish Meeting under the Local Government Act of 1894, an Icelandic Thing, a Basuto Pitso. The Roman assemblies are, therefore, large bodies consisting of thousands, often many thousands, of persons, and fluctuating bodies, in which not always the same persons will be present, and in which those who live near the place of meeting will tend to preponderate. Further, they are—and this is a remarkable feature of the Roman system—bodies composed of minor bodies, and determining their decision by a system of double voting. Each individual votes in the group to which he belongs, curia, centuria, or tribus, as the case may be; and it is by the majority of curies, centuries, or tribes that the decision of the assembly as a whole is given, the collective voice of each of these groups being reckoned as one vote, and a small group having as much weight as a large one. Thus there may be a majority of group votes for a proposition while the majority of votes of individuals is against it. This mode of voting, unfamiliar to modern political constitutions, survives in the Rectorial elections of two 298(Glasgow and Aberdeen) of the four Scottish Universities, where the students vote by ‘nations’; and it has sometimes happened that a person is on this method chosen to be Lord Rector against whom a majority of the votes given by the individual electors has been recorded^[124]. So under the Constitution of the United States, when no candidate for President has received a majority of the votes given, the House of Representatives chooses one of the five candidates who has received most votes, and in doing so the House votes by States, i.e. the majority of the Representatives from each State determine the vote of that State, and the majority of States (not of individual Representatives) prevails. Thirdly, these assemblies can be convoked and presided over only by a Magistrate, and their action may be stopped by another Magistrate. Fourthly, no discussion takes place in them. They meet only to vote on propositions submitted by the presiding Magistrate, who alone speaks, and who speaks only to put the question. Fifthly, they vote once only, and that vote is final and supreme, requiring no assent of or confirmation by any other body, but operating directly to create a rule binding all members or subjects of the State.

Such a machinery seems almost as if calculated either to check legislation by throwing obstacles in its way, or else to make legislation hasty and imprudent. The passing of a long measure or a complex measure might be thought scarcely possible under it; while at the same time it secures no opportunities for criticism and revision, and for the reconsideration at a future 299stage of decisions too hastily taken when the measure was first submitted. Thus there would appear to be a double danger involved in such a system, the danger of not moving at all, and the danger, when the people do move, of going too fast and too far. It must be remembered, however, that not very much direct legislation was needed. The improvement of ordinary private law was for the most part left to the Praetor and the jurists, while one great branch of modern legislation lay almost untouched during the Roman Republic, that of the regulation of powers and functions of administrative departments. There was comparatively little general administrative law in our modern sense in Italy, because in Rome the magistrates and Senate had a pretty wide discretion, and through the rest of Italy the local communities managed their own affairs. So too in the provinces administration was left either to the local municipalities or to the Roman governors, proconsuls, or propraetors.

Even if the method of legislating which these assemblies followed be deemed ill fitted to secure that the merits of any change in the substance of the law should be carefully weighed, it need not have been equally deficient in making it excellent in point of form, i.e. clear, consistent, symmetrical. In this respect the absence of means for discussion and amendment may have worked for good. Statutes enacted in the form in which they have been originally proposed are more likely to be plain and simple than those which have been cut about, pared down, and added to by the action of some revising Committee or of a Second Chamber, probably dissimilar in opinion 300from the First Chamber, possibly disposed to differ for the sake of differing. The volume of direct legislation may, under a system like that of Rome, be comparatively small. But the fewer changes in the law are made by statute so much the better for the harmonious development and inner consistency of the whole body of law, which suffers far less often from permitting the survival of an occasional anomaly or absurdity than from frequent tinkering, that is to say, from the introduction of exceptions to general rules, or the multiplying of provisions for special cases. So far, therefore, as quantity is concerned, the small amount of legislative work which the Roman comitia turned out was a matter for satisfaction, not for regret.

As respects the quality of that work, the character of the Assembly produced some remarkable consequences. That it might be understood and approved by the ordinary citizens, the bill proposed must be comparatively short, terse, clear. In many cases it would have been previously discussed at public meetings, which the magistrate could summon; but those who would attend the meetings might be but a small proportion of those called upon to vote in the comitia. As it could not be amended by the Assembly, and would reflect credit or discredit on the name of the proposing Magistrate who was responsible for it, it must be prepared with scrupulous care. As it would become operative immediately on its being approved by the single vote of the Assembly, with no opportunity of correcting it at any later stage or in any other legislative body, an error would be serious to the community, and specially 301damaging to the proposer. Moreover, as it could not be amended in the Assembly, it escaped all risk of having its drafting spoiled and of losing what original merits of breadth, lucidity, logical arrangement, and conciseness of expression it might possess. No one could move to add or to omit a clause. No large principle could be qualified by the insertion of limiting words. No savings for particular cases could be suggested, and possibly accepted in order to buy off opposition. ‘Yes’ or ‘No’ to the whole bill—these were the only alternatives. And the simpler the bill, so much more probable the ‘Yes’; whereas in assemblies with power to amend, a ‘Yes’ has to be purchased by compromises and concessions, which, whatever effect they may have on the substance of a measure, destroy the elegance of its form. The statutes passed by the Roman people had, therefore, owing to these causes, three great merits. There were few of them. They were brief. They were clear. We possess fragments, in some cases pretty large fragments, of a good many; and in all the drafting is excellent. The sharp, stern, almost grim conciseness and precision of the Twelve Tables seem to have been always present to the mind of the Roman draftsman as the model he ought to follow.

It is worth remarking that the earliest Roman conception of a Lex or Statute was different from that which we find in the imperial period, as well as from that which any modern jurist would naturally form. The word lex meant in early Latin simply a set form of words; and when applied to an enactment by the comitia, it described, not a special kind of legal rule, but merely the expression of the 302people’s will in set terms. And the original conception of a statutory enactment was that of a contract made between the Citizens in the comitia and the Magistrate representing the Corporate State. Hence the definition of Lex which we find given by Papinian (Dig. i. 3. 1), ‘the common covenant of the republic’ (communis reipublicae sponsio), probably descends from the old practice according to which the Consul or other presiding Magistrate asked (rogavit) the comitia whether such and such was their wish, submitting to them the form of words whereby they were to agree to bind themselves. Just as in the Roman stipulatio the questioner asks the promiser whether he promises to do such and such a thing, to which the latter answers, ‘I promise’ (spondeo); so the Consul asks the Quirites whether they wish and order that such and such a thing shall be done (Velitis, iubeatis, Quirites?), whereto the citizens answer, ‘Be it as you ask’ (Uti rogas). Thus the first (or at any rate a very early) form in which the notion of a formally enacted, as distinct from that of a Customary, Law emerges in Rome is that of a Contract.

The Romans were like the English in this, that they seldom did anything formally till it had for a great while been done practically. Long after the power of legislation had passed in substance from the king of England to his subjects represented in his Great Council, the forms of the Constitution continued to suggest that the monarch was still the prime agent in legislation. To-day the so-called Royal Veto, which ought rather to be called the right of the Crown to take further time to consider the resolutions of the two Houses, subsists in theory unimpaired, though it has 303not been exercised since 1707. So when actual power passed from the comitia to the Imperator in the days after Julius Caesar and Augustus, the rights and functions of the Assembly were not formally extinguished. Magistrates continued to be elected by the comitia till the accession of Tiberius, and the right of legislation remained for a great while afterwards legally vested in them. Statutes appear to have been passed by them as late as the time of Nerva. The comitia themselves died out by obsolescence, without being ever formally abolished, and apparently they went on meeting occasionally in a purely formal way long after they had ceased to be a reality, just as the name Respublica Romana survived in documents and inscriptions when the old associations it evoked had been forgotten^[125]. And the popular assemblies died out all the more quietly because they had never met of themselves, by simple operation of law. Like the English Parliament, but unlike the American Congress and the Chambers of some European countries, they needed to be convoked by the Executive^[126].

VII. Direct Legislation at Rome.

B. The Senate.

When legislation by these assemblies ceased the turn of the Senate came. This body, a Council of Elders as old as Rome itself, perhaps in its original form corresponding 304to the Council which surrounded the Homeric king, seems to have claimed, even during the Republic, the right of general legislation, a right which the popular party denied, and which was probably not well founded in law, although its undoubted competence to issue administrative decrees for temporary purposes made the claim plausible, and raised many questions of delicacy and difficulty regarding the exact limits of its power. Moreover the Senate, whose proper function was to advise the magistrates, came to have a sort of ill-defined authority over them, and they often found it prudent to shelter themselves under that authority; so sometimes a resolution directing a magistrate to take such and such a course might be quoted as possessing legal validity, especially if the course was one which lay within the scope of his official discretion. The whole subject was full of uncertainty, and a controversy seems to have gone on among constitutional lawyers regarding the Senate’s powers, similar to that which long raged in England over the so-called dispensing power of the Crown^[127]. When the comitia ceased to be convoked, except occasionally as a matter of form to give effect to the monarch’s will, it was natural that the legislative functions of the Senate should win full recognition, for they furnished exactly the method of legislation which the Emperors desired. As the Roman State remained a republican commonwealth 305in theory and in strict intendment of law long after it had passed under the sway of a monarch, and as it was the object of the monarch to keep up this theory, he found it easy and safe to act through the Senate, which (though absolutely obedient to him) still wore the air of an independent body, rather than in his own person, ample as was the magisterial authority wherewith he was clothed. Thus the Senate at the same moment acquired power and lost it. It became recognized as entitled to make law, but it found itself the mere instrument of the Emperor for that purpose. From the time of Tiberius down to that of Hadrian, many laws were passed by the Senate; and though its action became thenceforward less frequent and less important, its rights lasted as long as it lasted itself, that is to say, till it died out in the disorder of the seventh century. They are referred to by Justinian as if still existing, but we do not hear of any practical use made of them in his time. One of the latest measures ascribed to the Senate is, oddly enough, a decree for regulating the election of Popes, and preventing tumults thereat.