Chapter VII: Private Law Least Affected by Political Changes or Direct

LEGISLATION.

One phenomenon is common to the legal history in all these nations. That part of the law which has the greatest interest for the scientific student, and the greatest importance for the ordinary citizen, the private civil law of family and property, of contracts and torts, has been the part least affected either by political changes or by direct legislation. It has been evolved quietly, slowly and almost imperceptibly, first by popular custom, then by the labours of jurists and the practice of the Courts. Direct legislation by the supreme power has stepped in chiefly to settle controversies between conflicting authorities, or to expunge errors too firmly rooted for judges to rectify, or to embody existing usage in a definite and permanent form. In the sphere of private law, and even in that of criminal law (so far as not affected by politics), legislation scarcely ever creates any large new rule, and seldom even any minor rule which is absolutely new, not an enlargement of something which has gone before. Pure legislative novelties mostly turn out ill. Fortunately, the good sense of Englishmen, like that of Romans, has rarely permitted them to appear.

The parallel drawn between the history of Roman and that of English law is less instructive when we reach the later stages of that history. It cannot be made complete, not only because we know comparatively little of the inner condition and practical working of the Courts after the time of Constantine, but because there was after his time both a political and an intellectual decay, which few will profess to discover in the England of this century. The expansion and enrichment of the Roman system had stopped even before Constantine, while that of English Law is still proceeding[155]. In England commerce is still growing, education is still advancing, new and complicated problems are still emerging, so that many forces continue to work for the development of law. Though we cannot foresee what lines this development will follow we may feel sure that some of the old causes of change are disappearing. The democratization of political institutions seems nearly complete, religious passions have grown cold, and all classes have been so fully admitted to a share in political power that any such bold reforms in central and local administration, in procedure, in penal law, and in one or two departments of private civil law as followed the Reform Bill of 1832, seem improbable. In some departments the possibilities of further progress appear to be exhausted, though there are others, such as those concerned with questions of the right of combination among employers or among workmen, and the character which motive imparts to acts in themselves lawful on which the last word is far from having been said[156]. But there are at least two real difficulties which remain to be grappled with. One relates to the methods of legal proceedings. Their cost is so great as to deter many persons from the attempt to enforce just claims, to impose a heavy and unfair burden upon successful litigants, and to furnish opportunities for blackmail (especially in libel cases) to men who are equally devoid of money and of scruples. All efforts to cheapen them have so far failed. The other problem relates to a matter of substance. What are the general principles to be followed in empowering the State to regulate the conduct of individuals or groups of individuals, in permitting the central government or a local authority to compete with individuals in industrial enterprises, and in restricting the power of combinations formed for commercial or industrial objects? This group of problems are being daily pressed to the front by political forces on the one hand and by industrial progress on the other. They are as urgent in the United States as in Britain. Nor are they matters for legislation only, for cases frequently arise which the best legislation cannot count upon having provided for, and which it needs not only technical skill but also a philosophic grasp of principles on the part of the bar and bench to conduct to a solution. The experience of the ancient world and that of the Middle Ages throws little light upon them. But as they have appeared simultaneously in many modern nations, each may have something to learn from the others. Comparative jurisprudence has no more interesting field than this: nor is there any task in labouring on which an enlightened mind may find a wider scope for the devotion of learning and thought to the service of the community.

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Footnote 155:

Within two centuries after Justinian’s time official abridgements of
his _Corpus Iuris_ began to be issued, and it was virtually superseded
in the end of the ninth century by the _Basilica_ of the Emperor Leo
the Philosopher. The action of his successors was largely directed to
cutting down the old law into a shape better fitted for the changed
conditions of the Empire, and the declining intelligence of the
people.

Footnote 156:

The interest excited by cases such as those of the _Mogul Steamship
Company_ v. _Macgregor_ and _Allen_ v. _Flood_ illustrates this.

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I am tempted to venture on some other predictions as to the influences that may be expected to work on the legal changes of the coming century. But we have been pursuing an historical, not a speculative, inquiry, and it will be enough to suggest that industry and commerce, as quickened by the progress of physical science, are likely to be factors of increasing power, and that the purely political element in the development of law will count for less than that contributed by the effort to readjust social conditions and to give effect to social aspirations.

XVI

MARRIAGE AND DIVORCE UNDER
ROMAN AND ENGLISH LAW