Chapter 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 and 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, unworkable, 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 include, 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 Roman 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 many 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 cases 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 days 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.

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Footnote 111:

The late Lord Justice W. M. James.

Footnote 112:

_Dig._ i. 3. 38.

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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 students, whether English judges or Roman text-writers, that has done the work which the people, or the Courts for the people, have accepted.