Chapter V: Some Differences Between the Development of Roman and That of English

LAW.

The branch of private law which is most intimately connected with the social and economic habits of a nation, and which, through social and economic habits, most affects its character, is that branch which touches Property, and the connexion of property with the Family. The particular form which the institutions relating to property, especially immovable property, take, tells upon the whole structure of society, especially in the earlier stages of national growth. The rules, for instance, which govern the power of an owner to dispose of his property during his life or by will, and those which determine the capacity of his wife and children to acquire for themselves by labour or through gift, and to claim a share in his estate at his decease if he dies intestate, or even against his last will—these rules touch the richer and middle classes in a community and affect their life. So one may perhaps say that the development of this branch of law comes nearer than any other to being the central line of legal development, bearing in mind that it is the needs and wishes of the richer and middle classes which guide the course of legal change. Here, however, we discover an interesting point of comparison between Roman and English legal history.

At Rome it is the history of the Family, especially as taken on its economic or pecuniary side, the most important part of which is the Law of Inheritance, that plays the largest part. The old rules, which held the Family together, and vested in the father the control of family property, were at first stringent. From the third century B.C. onwards they began to be modified, but they were so closely bound up with the ideas and habits of the people that they yielded very slowly, and it was not till the bold hand of Justinian swept away nearly all that remained of the ancient rules of succession, and put a plain and logical system in their place, that the process was complete.

In England, on the other hand, it is the Law of Land that is the most salient feature in the economico-legal system of the Middle Ages. Among the Teutons the Family had not been, within historic times at least, a group closely bound together as it was among the Italians, whereas the historical and political conditions of the eleventh and twelfth centuries had in Western Europe made landholding the basis of nearly all social and economic relations. Hence the land customs then formed took a grip of the nation so tight that ages were needed to unloose it. The process may be said to have begun with a famous statute (_Quia Emptores_) in the reign of Edward I. Its slow advance was quickened in the seventeenth century by political revolution; and the Act of 1660 which abolished knight service recorded a great change. The peaceful revolution of 1832 gave birth to the series of statutes which from 1834 down to our own day have been reshaping the ancient land system, but reshaping it in a more piecemeal and perplexing fashion than that in which Justinian reformed the law of succession by the 118th and 127th Novels. Problems connected with landholding still remain in England, as they do in nearly all States, especially where population is dense; but they differ from the old problems, and though disputes relating to the taxation of land give trouble, and may give still more trouble, questions of tenure have lost the special importance which made them once so prominent in our legal history.

Both Rome and England have been, far beyond any other countries except Russia, expanding States. Rome the City became Rome the World-State. The Folk of the West Saxons went on growing till it brought first the other kingdoms of South Britain, Teutonic and Celtic, then the adjoining isles of Ireland and Man, then a large part of North America, then countless regions far away over the oceans under the headship of the descendants of Cerdic and Alfred. But in the case of Rome this expansion by conquest was the ruling factor in political and legal evolution, the determining influence by which institutions were transformed. In England, on the other hand, it is the relations of classes that have been the most active agency in inducing political change, and the successive additions of territory have exerted a secondary influence on institutions and an insignificant influence on law. Not only has English law been far less affected (save at the first two of the five epochs above described) by foreign law or foreign thought than Rome was, but the increase of England by the union, first of Scotland and then Ireland, and by the acquisition of transoceanic dominions, has not interrupted the purely insular or national development of English law. The conquest of Ireland, which began in the twelfth century but was not completed till the seventeenth, made no difference, because Ireland, always since the twelfth century far behind England in material progress and settled social order, received a separate civil administration with separate Courts. As these Courts administered English law, they followed in the path which England had already travelled and did not affect the progress of law in England. Nothing speaks more of the long-continued antagonism of the Teutonic and the Celtic elements in Ireland, and of the dominance of the Teutonic minority over the Celtic majority, than the practical identity of the common law in the two countries, and the total absence of any Celtic customs in that law. The few and comparatively slight differences which exist to-day between the law of England and that of Ireland are all due to statute. One is the absence of judicial divorce in Ireland, which an Act passed so recently as 1857 introduced in England. The second is to be found in the law relating to land, largely altered by statutes passed for Ireland by the British Parliament of our own time. The third is the existence in Ireland of what are admitted to be exceptional and supposed to be temporary penal provisions, the last of which is the Prevention of Crime Act of 1887. As regards Scotland, when her king became king of England, and when, a century later, her Parliament was united with that of England, she retained her own law intact. In some few respects her law, founded on that of Rome, and her system of judicial administration are better than those of England, nor has she failed to contribute distinguished figures to the English bench and bar; but, as she stands far below England in population and wealth, she has affected the law of the larger country as little as the attraction of the moon affects the solid crust of the Earth.

The vaster territorial expansion of the eighteenth and nineteenth centuries has told quite as little on the law of England as did the unions with Scotland and Ireland. When the English began to people what are now the self-governing colonies, and when India came under British sway, English law was too fully developed to be susceptible to influences from them, not to add that they were too distant to make any assimilation either desirable or possible. Had India lain no further from England than Sicily and the Greek cities lay from Rome, had she been as near the level of English civilization as those countries were to that of Roman civilization, and had she been conquered in the reign of Elizabeth instead of in the reign of George III, the history of English institutions and English law must have been wholly unlike what it has in fact been. These three differences measure the gulf which separates the course of English from that of Roman development.

Another salient point in which the two States may be compared relates to the smaller part which purely political as compared with economic and intellectual changes have played in the development of English laws and institutions. Although there is a sense in which every political change may be described as the result of an economic or intellectual change, or of both taken together, still it is true that at Rome the desire to grasp political power counted for more in the march of events than it has done in England.

Economic changes sometimes operate on politics by raising the material condition of the humbler class and thereby disposing and enabling them to claim a larger share of political power. This happened at Rome more frequently in the earlier than in the later days of the Republic. In England it has happened more in later times than it did in earlier. Sometimes, however, economic causes so depress the poor that their misery becomes acute or their envy intense, whence it befalls that they break out into revolt against the rich. This was on the point of happening more than once at Rome, but has been no serious danger in England since the days of Richard II. Sometimes, again, the growth of immense fortunes and the opportunities of gaining wealth through politics threaten the working of popular institutions. This occurred at Rome; and was one of the causes which brought the Republic to its death. It is a peril against which England has had, and may again have, to take precautions.

Changes in thought and belief operate on politics either by weakening the deferential and submissive habits of the classes which have been excluded from power so that they insist on having their fair share of it, or by implanting in the minds of the middle and upper classes new ideas which grow strong enough to make them insist on bringing old-fashioned practice into accord with new and more enlightened theory. It was the concurrence of these two forms of intellectual change that gave its specially destructive character to the French Revolution. Ideas of course act most quickly and powerfully when they are such as rouse emotion, for that which remains a mere intellectual concept or speculative opinion is not a thing to stir or to shake established institutions. The best illustration is to be found in religious beliefs. But the notion of Equality—that is to say, the notion that rights vested in every man as a man demand that every man shall be treated alike—has also proved an energetic explosive. Influences of this kind counted for little at Rome. Neither have they, except in the form of religious beliefs, or when their force coincided with that exerted by religious convictions, become the source of strife or constitutional change in England.

One may indeed say that the course of England’s political development has been less interrupted by convulsions than that of any other great State, for even the scars made by the Civil War were before long healed, so that hardly any of the old institutions perished, though some of them passed into new phases. The new buildings which popular government has within the present century added to the old edifice are built out of the same kind of stone, and (if one may venture to pursue the metaphor) weather to the same colour. So the growth of our law, both public and private, both criminal and civil, has been a gradual and quiet growth, due in the main to the steady increase in the magnitude and complexity of the industrial and commercial relations of life, which have made the law expand and improve at the bidding of practical needs. Where politics have affected the law, this has been through the rise of the humbler classes, a rise largely due to economic causes. So likewise the influence of ideas, of new views as to what law should be and how it should serve the community, has been marked by few sudden crises, and has been ruled by practical good sense rather than by aspirations after a theoretical perfection. As regards private law, this remark applies to the Romans also, although the constant strain placed upon their institutions by their territorial expansion as well as the differences between a City State and a large rural State exposed their political system to more frequent shocks and ultimately to a more radical transformation.

Finally, it may be observed that the interest felt in law, and the amount of intellectual effort given to its development, was probably greater among the educated class in Rome than it has ever been in any large section of the English people. Romans of intellectual tastes had fewer things to think about, fewer subjects to attract or to distract them, than the English have had. Law was closely interwoven with public life. Country life and country sports, commerce, religion, travel and adventure, covered less of the mental horizon than these pursuits have covered to Englishmen of the upper or educated class, so that more of thought and time was left to be devoted to law. Nor were many Romans carried off into other regions, like the Greeks, by the love of art, or of music, or of abstract speculation.

From this reflection another arises, viz. that legal and constitutional studies, as a subject for research and thought, find the competition of other subjects more severe in England to-day than they did in the eighteenth century[154]. Historical inquiries, economic inquiries, and, to a still larger extent, inquiries in the realm of Nature, claim a far larger share in the interest of eager and active minds now than in the days of Hobbes or Locke or Bentham. They have done much to extrude law from the place it once held among subjects of interest to unprofessional persons. This is true all over the world; but legal topics, whether constitutional or belonging to the sphere of penal or administrative, or international or ordinary private law, seem now to claim even fewer votaries in England than they do in France or Germany, and certainly fewer than they do in the United States.

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Footnote 154:

I owe this observation to my friend Mr. Dicey.

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