Chapter X: Some Reflections Suggested by the History of Legislation

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

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

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

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

-----

Footnote 141:

According to Sir C. P. Ilbert (_op. cit._) nine-tenths.

-----

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

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

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

-----

Footnote 142:

It must, however, be added that the difficulties which surround this
most unsatisfactory branch of our law are partly due to the recurring
collision of two different theories, that of _Caveat emptor_ (let the
buyer beware) and that which would exact _uberrima fides_ (the amplest
good faith) from a company promoter or director.

-----

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

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

XV

THE
HISTORY OF LEGAL DEVELOPMENT
AT ROME AND IN ENGLAND

In the last preceding Essay the organs of legislation, and the methods whereby they were worked at Rome and in England respectively, were discussed and compared. A consideration of the course which legal change took, in its various phases of development, reform or decay, may be completed by inquiring into the general causes and forces which determined and guided the process of change. To justify the selection of Rome and England for comparison it is necessary to recur to two points only in which the history of institutions in these two States presents a remarkable analogy. Both have been singularly independent of outside influences in the development of their political character and their legal institutions. The only influence that seriously told on Rome was that of the Greeks: yet how thoroughly Roman all the institutions that ever had been Roman remained down till the second century of the Empire, after Hellenic influence had for more than two hundred years been playing freely and fully upon literature and thought! So English institutions have been far less affected by external influences than have been those of any other part of European Christendom. In France, Italy, Germany, and Spain, the traces of Roman dominion were never obliterated, and Roman law too, both through its traditions and through the writings which embody it, has always been a more potent factor than it ever was here. These countries have, moreover, borrowed more from each other than we have done from any one of them, except, perhaps, in the days when Normandy gave a Continental tinge to the immature feudality of England. And, secondly, both Rome and England have extended their institutions over vast territories lying beyond their own limits. Each has been a conquering and ruling power, and the process by which each grew into a World State from being, the one a City and the other a group of small but widely scattered rural tribes, offers striking points of resemblance as well as of contrast. I might add that there are similarities in the character of the two nations, similarities to which their success in conquering and ruling is due. But, for the moment, it is rather to law and institutions than to character that I seek to direct the reader’s attention.

Since the law of every country is the outcome and result of the economic and social conditions of that country as well as the expression of its intellectual capacity for dealing with these conditions, the causes which modify the law are usually to be sought in changes which have passed upon economic and social phenomena. When new relations between men arise, or when the old relations begin to pass into new forms, law is called in to adjust them. The part played by speculative theorists or by scientific reformers who wish to see the law made more clear and rational is a relatively small factor in legal change, and one which operates only at rare moments. The process of development, if not wholly unconscious, is yet spontaneous and irregular. Alterations are made, not upon any general plan or scheme, but as and when the need for them becomes plain, or when it has at least become the interest of some ruling person or class to make them.

The relation of the general history, political, economic, and social, to changes in laws and institutions is best seen at certain definite epochs. It is indeed true that in nations which have reached a certain stage of civilization the conditions of life, and the relations of men and classes to one another, never remain quite the same from generation to generation. Every mechanical discovery, every foreign war or domestic insurrection, every accession or loss of territory, every religious or intellectual movement leaves things somewhat different from what it found them. Nevertheless, though the process of change is, except in savage or barbarous peoples, practically constant and uninterrupted, it becomes at certain particular moments much more swift and palpable, rushing, so to speak, through rapids and over cataracts instead of gliding on in a smooth and equable flow. These are the moments when a nation, or its ruler, perceives that the economic or social transformations which have been taking place require to be recognized and dealt with by corresponding changes in law and institutions, or when some political disturbance, or shifting of power from one class or group to another, supplies the occasion for giving effect to views or sentiments hitherto repressed. Accordingly it is profitable to give special attention to these transitional epochs, because it is in them that the relation between causes and consequences can be studied most easily and on the largest scale. Let us see what are the epochs in Roman and in English history which may be selected as those marked by conspicuous legal or institutional changes before we examine the relations of these changes to the forces which brought them about.