Chapter XXIV: Some General Reflections: Changes in Theory and in Sentiment (2)

Now every legal opinion, argument, and judgment chiefly turns on the application of known principles or rules of law to facts; and this either by way of fitting the law to the facts—that is, of expounding the nature, meaning, and limits of a principle in such wise as to make it appear to cover the facts proved; or conversely by way of fitting the facts to the law, that is to say, of setting forth the rule or principle, as admitted, and then of so stating the substantial result of the facts taken as a whole, as to make it appear that the case falls under this rule as already given. In this process the Roman jurists shone preeminent. English judges, certainly from no want of learning or acumen, but rather from a sort of caution, or from a traditional reluctance to deliver an opinion going any further than may be necessary, have generally been unwilling to formulate principles, preferring, where they could, to dilate on the special circumstances of the case, and base their decision thereon; and the consequence is to be seen in the prolixity of our Reports, and the uncertainty of much of the law contained in them. The labour of reading English cases is great in proportion to the quantity of positive law they embody; and their philosophical worth not commensurate with the genius and industry bestowed upon them by both bar and bench. The cases, if one may so call them, which we find in the Roman jurists give more law and more real intellectual training in a much smaller compass. They are often imaginary, invented to show the application of a rule, and are therefore short and clear, enforcing their principle with a directness which makes it easily apprehended and remembered. In reading them we seem to learn better than anywhere else how principles should be dealt with.

In the matter of legal expression the superiority of the Romans is scarcely less marked. The power of stating a proposition of law in comprehensive and exact terms, wide enough to cover all cases contemplated and yet precise enough to exclude cases more or less similar to which the rule is not intended to apply, is valuable to the text-writer and quite indispensable to the framer of statutes. Unfortunately it is one of which our statute-book bears few traces. Now the legal language of the Romans is a model of terseness, perspicuity, and precision, and from a study of it, even allowing for the difference between the structure of the two languages, the English draftsman may derive many valuable suggestions.

Over and above the specific benefits enumerated, it must be added that a study of the Roman law would not merely tend to produce, but must necessarily precede, any extended healthy intercourse between our jurists and those of the rest of Europe, any participation by us in the general advancement of juridical science. ‘England,’ said an eminent continental jurist, surveying the progress made in his department, ‘England sleeps for ever’: and she sleeps because her lawyers have allowed themselves to become as completely isolated as though we were living in and legislating for a planet of our own. Certainly, when one remembers how in other branches of inquiry each country depends upon its neighbours, how meagre would be our scholarship, our ethics, our history, our criticism—never to speak of medicine and the whole circle of the sciences of nature—if in each of these subjects we trusted to our own efforts only—it does seem strange that in the matter of law we should be content to draw nothing from the labours of other nations. As the facts law deals with are in the main the same in all civilized countries, and the substance of its leading conceptions virtually identical, there must clearly be much for us to learn from other highly cultivated systems, and it is only our ignorance of the common legal vocabulary of Europe that keeps us from so learning. The habit, however, has grown so strong that we do not even care to profit by the experience of a country which speaks our own legal language—the United States—where many problems have been handled by the Courts and many experiments have been tried by the legislatures which are full of instruction for us[246].

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Footnote 246:

Cases decided in the United States are more frequently cited in
English Courts now (1901) than they were in 1871.

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This argument, being directed to show that the study of the Civil Law will help to make English law more of a system and a science than it is now, and to train the individual lawyer in more philosophical habits of mind, proceeds upon the assumption that law ought to be a science and lawyers philosophical. To prove the truth of this assumption would involve a discussion of the relations of theory and practice generally; and in a University, at least, no such proof will be demanded. Science, like wisdom, is justified of all her children; and those who, in the teeth of what we have seen during the last eight months[247], persist in holding theory to be a hindrance to practice, would, quite consistently, refuse to be convinced by any such general considerations as those which determine academical opinion. Without entering, however, on this higher ground, I may be permitted to mention two practical reasons for desiring to see our law treated as an organic and harmonized system of rules. One of these is the direct gain which the whole community would derive from a simplification of its form. Owing to the way in which English statutes are drawn, nearly every amendment of the law makes it more complicated and obscure than it was before. A new Act seldom repeals a preceding Act or Acts on the same subject as a whole: it abolishes some of their provisions, incorporates others, and modifies the rest. In dealing with a rule of the common law, instead of expunging the rule altogether, or laying down a new principle by which it is to be controlled, it usually establishes a series of exceptions in a manner so seemingly arbitrary as to make it very difficult to determine, when a new case arises, whether or no it was within the contemplation of the Act. The Married Women’s Property Act of last session is an instance in point[248]. Similarly, vast branches of our law, such as that which relates to public health and to the regulation of mines and manufactures, are suffered to remain in a state of hopeless confusion—Acts fringed with decisions piled upon other Acts and their decisions, till it becomes impossible, without a long and painful research, to say what is law and what is not[249]. This wretched state of things, which makes a resort to the Courts far more costly, and its issue far more uncertain than it need be, though partly due to existing parliamentary arrangements, is also in great measure due to the want of that feeling for the symmetry and simplicity of the law which a scientific conception of it would be certain to produce in the profession. The public, which feels the evil, is powerless to remedy it; while those members of the profession who have the power are deterred from the necessary efforts, not, as is commonly supposed, by the mean notion that it is their interest to keep their art a mystery, but partly by long habit, which has made them indifferent to the beauty of order, partly by the want of that scientific training on which the success of amending legislation depends.

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Footnote 247:

The reference was to the war, just ending when this lecture was
delivered, between Germany and France.

Footnote 248:

This Act caused so much trouble that it had to be amended and the law
recast by the Married Women’s Property Act of 1876.

Footnote 249:

A marked improvement has, however, taken place since the establishment
of the office of the Parliamentary Counsel a few years ago. Many
Bills, however, including all those brought in by private members, do
not pass through this office, and even those which come from it suffer
in point of form in their passage through Parliament. Since 1871, much
has been done in the way of consolidating the Statute law. See Essay
XIV, _ante_.

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The second benefit is the reflex effect upon the legal profession of a higher conception of the studies to which it devotes its labours. The complaint is often heard that men of literary culture and polished taste rise more seldom than formerly to the highest places at the bar and on the bench; that it is now private connexions rather than the finer gifts of intellect and character which open the path to professional success. If this be so, it is surely in great measure because our system of legal education gives too little scope to these nobler qualities, and turns them to no account in directing the studies of the aspirant. The life of a lawyer, tedious and distasteful in some of its details, would be more enjoyable if his occupation called out, as it ought to do, the highest faculties of his mind; and the tone of the profession, which will sooner or later be threatened here by the temptations which have begun to threaten it elsewhere[250], will be best maintained in purity by a sense of the dignity of the subject it deals with as a department of philosophical inquiry. It is scarcely possible that a corrupt administration of justice can coexist with an enthusiasm for the abstract propriety and elegance of law as a science, such as existed among the great jurists of Rome.

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Footnote 250:

The reference was to the scandals which had recently arisen in some of
the State Courts in the United States. These have now (1901) been
almost entirely removed.

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I am sensible that in this enumeration of the advantages of the study we have been considering, I may probably be falling into the common error of those who having a theme allotted them, try to bring more out of it than there is in it. To correct such a mistake, let it be frankly admitted that Roman law, though indispensable to the philosophical jurist, is not so to the practitioner; and that no knowledge of it can make up to him for the neglect of his own law. Let it also be conceded that it is not a subject ever likely to hold a front rank among those which awaken the ardour of our academic youth. It wants that charm of incompleteness, of unexhausted possibilities of discovery, which fascinates us in the sciences of nature. It does not, like metaphysics, set us face to face with the most stimulating problems of thought and life; nor can it, like history, dazzle the imagination and stir the emotions, by leading us through a long gallery of striking scenes and characters. Yet the study is one which pleases and satisfies as well as instructs; for it is at once, and that in the healthiest way, theoretical and practical, excellently philosophical in its methods, yet never quitting the firm ground of reality. Its materials are contained in the writings of men, the purity and loftiness of whose ethical tone were scarcely surpassed by the brilliance of their constructive genius. It is perhaps the most perfect example which the range of human effort presents of the application of a body of abstract principles to the complex facts of life and society. To quote once more from the most famous of modern jurists:—‘The study of Law,’ says Savigny, ‘is of its very nature exposed to a double danger: that of soaring through theory unto the empty abstractions of a fancied law of nature, and that of sinking through practice into a soulless unsatisfying handicraft. Roman law, if we use it aright, provides a certain remedy against both dangers. It holds us fast upon the ground of a living reality; it binds our juristic thought on the one side to a magnificent past, on the other, to the legal life of existing foreign nations, with whom we are thereby brought into a connexion wholesome both for them and for ourselves[251].’

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Footnote 251:

Preface to vol. iii. of the _System des heutigen römischen Rechts_.

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Standing midway between those classical and historical studies which belong to a general liberal education, and those purely professional studies which form the first stage of active life, it is especially fitted to lead men from the one to the other, and show them how to turn to account in the latter the ideas and capacities which the former has given them. But although this is a strong reason why the University of Oxford should undertake to recognize and promote the study, it is not the only or the chief reason. Even more important than the function of an University in education, is the scarcely separable function of dealing with every department of human activity in the abstract, investigating its principles and developing its rules in their philosophical coherence. We are all too apt, in the hurry of life and the pressure of its trivial necessities, to lose sight of that which is universal and permanent—to forget that what we are pursuing as a trade is the subject of a science, and has, as such, its greatness and its perfectibility. The ideal is not far from us, but we catch only transient glimpses of it; and of those who continue in maturer life to cherish the belief in its worth, the most conceive of it in relation to their inner life only, and look on their action in the world without as something which belongs to another and a meaner sphere. The University is appointed to correct this failing—to link the present, in which things seem petty, to the past which clothes them with a mellower light—to ennoble practice by a constant recurrence to theory—to show that intellectually as well as ethically there is nothing common or vulgar, nothing which may not and ought not to be considered as within the domain of Philosophy, who, the more perfect she becomes, sees more clearly that which is great in that which is the least. In undertaking, therefore, not only to educate in the ordinary liberal studies, but also to deal in a broad and lofty spirit with such large practical topics as this of law, the English Universities will in a new way justify their possession of that wealth and external splendour which they alone out of the great mediaeval sisterhood have been privileged to retain. They will associate themselves more closely with the life of the nation, and confirm the reverence with which it still regards them; nor is it idle to add that in thus enlarging the scope of their activity, they will be closely following and worthily maintaining the traditions of their glorious past.

XVIII
_VALEDICTORY LECTURE_[252]

LEGAL STUDIES IN
THE UNIVERSITY OF OXFORD

Twenty-three years have passed since I entered on the duties of the Chair of Civil Law in this University: and to-day, in obedience to precedents of high authority, I come to say some parting words suggested by the experience of those years. They have been years full of experience for us all: and it may be not unprofitable that I should note the changes they have brought and endeavour to estimate the position which legal studies, and especially the study of the Civil Law, have now reached in the University and in the country.

Those changes have been many and momentous. Since 1870 the University has nearly doubled the number of its undergraduates and has greatly increased the number of its teachers. It draws students much more largely from the less wealthy classes of the people. A new college has been founded, and risen to prosperity: an old one has been refounded and enlarged. Two colleges for women have sprung up and taken firm root. Theological tests have been abolished: persons not belonging to the Church of England as by law established have begun to resort freely to Oxford: two theological faculties belonging to unestablished religious bodies have come to dwell in her midst, and have received a courteous welcome. Nor have any of the unfortunate consequences predicted as likely to follow from the admission of Nonconformists been actually experienced, for there has been a diminution of theological controversy, a growing sense of friendliness and sympathy among Christians, a more assured peace in the minds of our students.

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Footnote 252:

Delivered on resigning the Regius Professorship of Civil Law at
Oxford, June 10, 1893.

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The examination system has been remodelled, with a regrettable but perhaps inevitable increase of complexity, as well as enlarged by the inclusion of new studies. The University and the Colleges have been dealt with by Parliament and by an Executive Commission: and the serious consequent evils have been not wholly uncompensated by gains. Oxford has undertaken many new kinds of work. She provides University Examinations for Women, and sends zealous young lecturers everywhere through England to bring teaching of an academic type within the reach of the people.

As regards Law, while the degree of Doctor of Civil Law has become a true distinction by the requirement of a thesis of substantial merit instead of the former purely formal exercise, the B.C.L. examination (theretofore scarcely serious) was made by a statute of 1872 a reality: the standard both of honours and of the pass degree has steadily risen, and this rise has been accompanied by an increase of candidates. That examination is probably now, I do not say the most severe test of legal attainments, but the best arranged and most practically useful law examination in England. In the years preceding 1870 there were seldom more than two or three entrants for this examination, almost absurdly easy as it then was. There are now usually upwards of twenty and sometimes twenty-five. Similarly the number of candidates in the School of Jurisprudence, by which candidates can obtain the degree of B.A., has grown and the quality of the work has improved.

In 1868 there were only three Chairs in the Faculty of Law: those of Civil Law, Common Law, and International Law, besides the temporary Vinerian Readership; and of these that of Common Law was virtually in abeyance. In 1870 the work of the Corpus Professorship of Jurisprudence began with the lectures of an illustrious writer whose fame two Universities dispute, for if Cambridge reared him, Oxford gave him the occasion for teaching, Sir Henry Maine. In 1878 the Readership in Indian Law, and in 1881 that in Roman Law, was founded and the opportunity taken of placing in it the zeal and learning of a German civilian—Dr. Erwin Grueber—whose lectures have proved most helpful. In 1882 the Vinerian Chair of Common Law became (as we trust it will ever continue) a working chair by the choice of another distinguished man whose powers, always admired by his friends, are now recognized over the English-speaking world, and to whom belongs the rare honour of having devoted those powers to the service of his political allies in a great and burning controversy without impairing the respect which all parties feel for the depth and soundness of his constitutional lore.

Thus there are now seven working professorships: and to these we must add, in estimating the teaching force which the University possesses, the lectures of another distinguished writer who may be reckoned as virtually a law professor—the Warden of All Souls: and of more than ten College lecturers, who serve the University as well as their respective Colleges, with recognized efficiency.

Thus, upon a review of recent years, we may say that as the whole University has grown and expanded, so has also this side of her activity, and that which was once a dry riverbed, or presented, like a South African river, only a few scattered pools of stagnant water, has now become a wide and fertilizing stream.

That serious deficiencies exist I am well aware: I shall presently advert to them and to the steps that may be taken to remove them. For the moment, however, I am noting progress actually made and gains actually secured. Among these may be reckoned the assured position which the study of the Roman Law now enjoys.

Though this was the first subject recorded to have been taught in Oxford, for one of the earliest notices of the University is to be found in the sentence ‘Magister Vacarius in Oxenefordia legem (_sc._ Romanam) docuit,’ and though from his time (the reign of King Stephen) down till the seventeenth century it held a rank second only to that of theology, it had within the last hundred years virtually died out of the University, and this chair, founded by King Henry VIII in 1546, and occupied in the time of King James I by Alberico Gentili, had become a sinecure. A few law degrees no doubt continued to be given, but they carried no evidence of knowledge. The revival begins with the substitution in 1852 of an examination (albeit a very slight one) for the old formal exercises for the degree of B.C.L., and the creation in 1853 of the Law and Modern History School (in which the Institutes of Justinian were made a subject of examination). That School was in 1872 divided into the present two Schools of Modern History and of Law, in the latter of which Roman Law received a more important place. Till 1870, however, there was scarcely any teaching, and what little did exist in the colleges was confined to commenting upon the solitary book required for the examination. No one had lectured on the Digest; no one had treated the history of the subject. This was part of that remarkable isolation of England from the general current of European legal thought and practice which was due partly to the resistance to the encroachments of the Canon Law, first of the barons in the thirteenth century, and again of the Parliament under Richard II, partly to the great religious breach of the sixteenth century, an isolation once politically fortunate, for it helped to develop the free spirit of the common law, but in our days, when the old dangers have vanished, a circumstance to be regretted and removed. Among the modes of removing it, the study of the Civil Law is not the least important. That study may now be deemed to have struck here in Oxford deep and tenacious roots. Both in our examinations and in our teaching it holds a place equal in dignity to English Law, though doubtless of narrower compass. It attracts in fully as large a measure the interest of the more intelligent among our students, and it can hardly be doubted that the excellence of the Law School in the future will largely depend upon its maintenance as a main element in both teaching and examination.

Its practical utility to the English lawyer is one of the points on which you may expect the results of my experience to be stated; for it is a point upon which attention must be constantly fixed, and I have had opportunities of studying it amid the din and dust of forensic practice in London no less than in the cloistered seclusion of Oxford.

In the Inaugural Lecture which I delivered here in 1871, an attempt was made to treat this subject. It was there pointed out that the utilities of the Civil Law to Englishmen might be reduced to three heads. One was its connexion with the main stream of the world’s history from the time of Pyrrhus, the first formidable antagonist from non-Italian soil whom Rome overthrew, to that of Muhamad, by whose first successors the East was torn from her grasp; and its influence, less conspicuous, but still considerable, upon the growth of opinion and the development of institutions ever since. This is an aspect of the subject which, since it belongs rather to the historian than the lawyer, I shall not pursue further to-day, though subsequent reflection leads me to believe that its importance can hardly be overrated. The second utility was to be found in the fact that Roman Law is the substratum of some branches of English Law, directly of the law administered in the Probate and Admiralty Division of the High Court of Justice, and indirectly of a good deal administered in the Chancery Division, in the further fact that it is the actual law of some of our colonies from which appeals come to the Privy Council, as well as the foundation of the law of Scotland whence appeals come to the House of Lords, and in the command which it gives of the law of modern continental Europe, since it is the basis of the systems that prevail in all those countries, and its knowledge is a sort of master-key to each and every of them. These circumstances—so I then argued—make it practically serviceable to the practitioner, and justify a man bent on professional success in devoting some time to its study. The third utility was to be found in its educational value, as forming the mind and training the aptitudes of the student devoting himself either to the theory or the practice of English Law. On these latter two of the above-mentioned three points it is proper to say a few words.

An observation extending over twenty-two years leads me to lay less weight than I laid in 1871 on the direct professional gain, in the way of securing practice at the bar, to be expected from a knowledge of Roman Law. Sometimes no doubt a man may find such knowledge directly helpful in writing opinions (especially if points of Scotch or French or German or Roman Dutch law arise), or in arguing before a Court. Once in addressing the House of Lords in a Scotch Appeal I discovered a pretext for quoting the Digest, which that august body received with grave approval, as not unbefitting the large survey they are wont to take of every matter that comes before them. But instances of this kind are rare in ordinary practice. It would be unbecoming to dilate upon this aspect of the question, for a University is the last place in which the worth of knowledge ought to be measured by its merely gainful utility, or where our studious youth ought to be led to set their hearts upon immediate practical success. Still, if one is asked to deal with the point upon a hard utilitarian basis, I cannot allege that the advantage to be expected from the possession of this acquirement does much more than counterbalance the impression which still prevails in the ‘other branch of the profession,’ that it is a little uncanny for a barrister to be known for anything except his knowledge of the English Law. Things might fall out differently for the young civilian to whom a judicious firm of solicitors vouchsafed a chance of getting into Canadian Appeal business or Admiralty business. But in such a world as the present, and more particularly at the bar, one cannot await chances or shape one’s course with a view to them; one must seize those that come and float onwards with the tide. The ambitious junior may desire to be employed in subtle questions of insurance or company law, but if briefs are offered him at the Old Bailey or even in the Divorce Court, he will probably deem it wise to accept them, and to wait till his position is assured before he begins to pick and choose among the business which clients send. In the long run, no doubt, a man who knows Roman Law will find many cases in which, when he has attained a front rank in the profession, he can profit by that knowledge. But the main thing for the practitioner is to get a start; and it is not certain that any one will get this start sooner by being as good a civilian as Oxford can make him.

This may be deemed a somewhat sordid aspect of the matter; so let me hasten to correct any possible misapprehension by adding that as respects the third head of utility—that of the benefit to a student’s mind which training in Roman Law gives, I can dwell upon it with a confidence deepened by the experience of every year. Far be it from me to disparage the law of England as it was disparaged by the eager reformers of seventy or even of fifty years ago, impatient of the defects, many of them removed since their days, which then marred its noble proportions. It is a system worthy of all admiration for its humane spirit, for the sense of civic equality and personal freedom which pervades it, for its elastic power of adapting its provisions to the needs of the great communities that live by it, not here only but beyond the Atlantic and beneath the Southern Cross. Its faults lie not in its substance but in the form which the historical conditions of its growth have given to it. It is a system extremely hard to expound and hard to master. So vast is it and so complicated, so much are its leading principles obscured by the way in which they have been stated, scattered here and there through cases reported in a chronological order, which is the perfection of disorder, so much have many of its main doctrines been cut across and (so to speak) dislocated by modern Statutes, that it presents itself to the learner as a most arduous study, a study indeed which only a few carry so far as to make themselves masters of the whole body of our working rules. Roman Law, on the other hand, is not only simpler, since it wants those differences between real and personal property, and between legal and equitable rights to which so much of our English complexity is due, but more limited in its range, large modern departments, like those of company law and insurance law and negotiable instruments, being absent. It is therefore a subject the whole of which the student can more easily bring under his eye, seeing the various parts in their relation to one another. What is of still higher import, the Roman Law is symmetrical and coherent. Each part not only has, but displays, its organic relation with every other part. The original sources in which we possess it are of moderate bulk, not larger than the English Law Reports of the last four or five years, and not a two-hundredth part of the total volume of our Reports.

Less than one-fourth of these writings is now of practical consequence, for the remainder, though interesting historically, deal with matters not significant to the modern lawyer. But the fraction which still concerns us is of the highest possible merit. In it one may find something of value upon almost every principle and general legal doctrine with which a jurist has to deal. The legal conceptions set forth are those upon which all subsequent law has been based; and nearly all of them find their place in our own system, which they have largely contributed to mould. Two of the Roman text-books deserve special mention. The Institutes of Gaius is a model of vigorous precision and lucidity, an elementary treatise to which we have nothing comparable. The Digest of the Emperor Justinian, containing short extracts from a number of the most eminent legal writers of earlier times, has excited the admiration of all succeeding generations by the concise, delicate, and philosophical way in which principles are set forth and points of detail investigated. Its contents are philosophical, not in the sense of being abstract, but in the firm grasp of principles, and the refined exactitude with which every principle is applied. No rules could better conform to the three canons of good law, that it should be definite, self consistent, and delicately adapted to the practical needs of society. No study can be better fitted to put a fine edge upon the mind, or to form in it the habit of clear logical thinking.

In England we have nothing similar, and although the study of case law may be made, and has sometimes been made in the hands of a skilful teacher (such as Mr. C. C. Langdell, of the Harvard University Law School), as good a training in subtlety and exactness as the Roman Law or indeed as the scholastic logic of the Middle Ages, the immense bulk of our cases makes it difficult to pursue such a method over the whole field which a learner ought to cover.

‘Nevertheless,’ some one may say, ‘even if the merits claimed for the Roman system be admitted, it is not our English system, and you are doubling the learner’s labour. Why should he add to the time and toil that the study of English Law needs, the time and toil, less though it be, needed for mastering the Roman? Why attempt both, when one alone is, on your own showing, so arduous?’

The answer is that the learner will make quite as rapid progress with English Law if he has begun with Roman as if he proceeds to break his teeth from the first upon the hard nuts of our own system. Twenty-one years ago I ventured to say this here and I venture now to repeat it with fuller confidence. Two men of equal ability and diligence start together after taking their B.A. degree. One gives a year to Roman Law and the two next to English. The other devotes to English the whole three years. At the end of the three years the first will know as much English Law as the second. He may not have covered so much ground or got on his tongue the names of so many cases, but he will know what he does know—nor will it be much less in quantity—more thoroughly and rationally. The explanation is twofold. In learning Roman Law, one learns the elements of law in general, and therefore of English Law also, these elements being more easily learnt from Roman sources, than they could be in the form they have taken among ourselves. And, secondly, in learning Roman Law one obtains a means of testing one’s comprehension of the real meaning of English terms and the nature and compass of English rules, which deepens and strengthens the learner’s hold upon his knowledge. The main difficulty which besets students till they have had a good deal of actual practice is to turn into the concrete the rules they have learnt in the abstract, or as a Roman lawyer says, _Leges scire non est verba earum tenere sed vim atque potestatem_. The study of reported cases is a valuable aid in grasping the practical application of rules, but cases are complicated by many details extraneous to the principle. When, however, a man has so mastered the main outlines of Roman Law as to be familiar with its conceptions and understand the application of its leading rules, he is naturally and almost necessarily led in his study of English Law to compare the conceptions and rules he finds there. His text-book tells him, for instance, that the English rule regarding the passing of the ownership of an object sold, is such and such. What is the Roman rule? If the two rules agree, he remembers the English better. If they vary, he is led to ask why; and he obtains a juster view of the origin, bearings, and range of the English rule from perceiving wherein it differs from the Roman. If any one thinks there is a risk of his confounding the two, and becoming muddled between them, I can only say that I have never known this happen, partly, perhaps, because in dealing with Roman Law one thinks in Latin—a good thing to do—and expresses in its technical terms the result one arrives at. On the contrary, the student gets a clearer and sharper view of the grounds of every doctrine, and of its precise compass, than he could get from studying either system by itself. It is as when in studying a foreign language one translates constantly backwards and forwards into one’s own, and obtains thereby both a finer perception of the idioms of both, and a more exact comprehension of the substantial meaning of every sentence that is so translated.

I may be reminded that the advantage here claimed does not apply to all departments of Roman Law alike, but to those only which cover the same field as our own Law. The remark is true, and draws with it a practical lesson. The subject has two aspects. Besides its intrinsic scientific interest as a vast and harmonious system, it has a historical aspect for the scholar and the student of institutions: it has a practical or professional aspect for the lawyer. Different parts of it are especially interesting to one or other of these classes. Much of the law of persons, of crimes, and of procedure, while it engages the curiosity of the scholar or historian, is too remote from modern conditions of life to attract, or to profit, the jurist of to-day. What he will chiefly value are the parts that deal with the law of Property, including Inheritance (though even in this there is a good deal whose interest is now merely historical) and of Obligations, together with some parts of the law of persons, such as marriage and guardianship. These are the parts on which the teacher should here in England expend his efforts, for it is in these that the comparison with English Law is chiefly instructive. He should lead the student along a path from which the parallel territories of English Law are in full view, and carry him constantly to and fro across the border. So if I may, at the risk of seeming to transgress a Roman rule, give a legacy to an uncertain person, I will bequeath to my successor, whoever he may be, this maxim as the best practical result of my experience—that Roman Law must always be so taught as to be brought into the closest and most constant relation with English Law, since it will thereby become not only more helpful but more enjoyable to both learner and teacher. It ought to be treated as a practical working system, full of life, not only because it is preserved to us in lifelike detail, but also because it is still actually in force as the operative law of some countries, full therefore of direct instruction and suggestion for ourselves, capable of being used to enlarge English conceptions or indicate useful modifications of English rules.

In discoursing on it, if I may in this expiring swan song refer to my own experience, I have usually passed by what may be called its antiquarian aspects, not from any want of interest in them, but because the object of quickening the interest and training the intellect of the _cupida legum iuventus_ seemed more urgent. It has been rather in the public lectures delivered from time to time before the University, that I have endeavoured to develop and illustrate the wider historical relations of the law of Rome, and to connect it, sometimes in the letter, sometimes in the spirit, not only with the history of the Empire and the Church, but also with the problems of abstract jurisprudence, with political ideas and constitutional forms, with the legal institutions of peoples remote in time, like the primitive Icelanders, or dissimilar in race and habits, like the Musulmans of the contemporary East, with current questions on which Roman experience sheds light, such as the law of Marriage and Divorce, with the enterprises of modern law-makers, like the Legislatures of the States of North America or the rulers of British India. Sometimes these lectures may seem to have strayed beyond the strict limits of the Chair. I have then fallen back on the ancient adage _Roma caput mundi regit orbis frena rotundi_, and have feigned for the Imperial law a continuance of its oecumenical authority. The Roman law is indeed still worldwide, for it represents the whilom unity of civilized mankind. There is not a problem of jurisprudence which it does not touch: there is scarcely a corner of political science on which its light has not fallen.

In the opportunities for such placing the two systems side by side lies the one great advantage which English and Anglo-American civilians enjoy as compared with their continental brethren. To the latter the Roman Law is the basis—in some countries it may almost be called the modified substance—of the current law. To us it is a parallel system with which comparisons can be made. These comparisons are eminently fertile in elucidation of the past condition of both systems, and in criticism of their present condition. To no scholars ought the early history of the Roman Law to be at once so easily comprehensible and so instructive as to us in England, because the history of our own law is full of beautiful analogies therewith. So no jurists are better able to estimate the value of Roman doctrines on many principles of contractual law, because our system has developed independently, and illustrates the Roman equally where it differs and where it agrees. We in England cannot pretend to rival the work which the great Germans of this century, men like Savigny and Vangerow, Ihering and Windscheid and Mommsen, have done for the investigation and exposition of Roman jurisprudence and legal history. But our detached position ought to give us a perspective and a freshness of critical insight, perhaps even a means of comprehending things by reading our own experience into them, which continental scholars sometimes lack; and of that experience, we may trust, due use will some day be made. For I cannot doubt, looking not only to the progress of the study in England, but to its rapid and solid growth in the Universities of America, that the study of the Roman Law, once so nearly extinct among us, is now destined to shine with a steady light for generations to come.

I had intended to review, in connexion with the progress of our own law school, the changes which have passed on the aspects of legal science in England within the last thirty years. Two among them give cause for regret, the decline of interest in projects for simplifying and consolidating the law, and the growing despondency wherewith attempts to amend our legal procedure are now regarded, a despondency probably due to the imperfect success which has attended those Judicature Acts from which so much was hoped twenty years ago. There are few countries in which so small a proportion of the men engaged in professional work show an active interest in legal reforms. Against these grounds of disheartenment I should have set the increasing zest wherewith the comparative method is being historically applied to the investigation of the origin of law and of political institutions, and should have dwelt on the revived study of primitive custom as the foundation of those institutions, as well as on the more active discussion of constitutional questions generally, whether foreign, or American, or domestic, and the vigour which so many of our younger writers show in examining the ethical and economic bases and grounds of law, with views wider and more sympathetic, if also more suffused by the moist light of emotion, than were those which some among us drew from the Utilitarians of the last generation. But these topics would lead me too far afield; it is for the present enough to observe two happy changes which we have ourselves seen—one, the warmer interest which the two ancient Universities display in the problems that engage the attention of social reformers and the willingness they show to aid practically in their solution; the other the much larger share which the jurists and constitutional students, as well as the economists, of America and the British colonies have come to take in all these discussions. As our books are known and conned beyond the ocean, so here we read and prize the most eminent colonial writers; and we find in an American magazine, the _Political Science Quarterly_, an excellently conducted organ, such as Britain has not yet been able to provide, for the discussion in a scientific spirit of a whole class of constitutional and quasi-political questions. As the isolation of England from Continental Europe is less marked than it was half a century ago, so still more conspicuously does the intellectual and moral unity of the English race dispersed throughout the world stand forth to-day in a clearer and fuller light.

Let us turn back to consider what still remains to be done to give this law school, now firmly established in the University, its due hold upon the legal profession and its due opportunities of promoting the progress of legal science. None of us can be blind to its present deficiencies. We have accomplished less than we hoped in raising up a band of young lawyers who would maintain, even in the midst of London practice, an interest in legal history and juristic speculation. The number of persons in England who care for either subject is undeniably small, probably smaller, in proportion to the size and influence of the profession, than in any other civilized country; and it increases so slowly as to seem to discredit the efforts of the Universities. Of those who have undergone our law examinations comparatively few have either enriched these subjects by their writings, or have become teachers among us, or have taken any part in promoting legal studies elsewhere[253].

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Footnote 253:

A very few names occur to me of persons who have so written or taught,
but I abstain from mentioning these lest I should omit others.

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How is this deficiency, which ought to be candidly confessed, to be explained? No one will lay it at the door of the University and College teachers, whose eminent services have been already referred to. To me it seems chiefly due to the following causes, causes which I mention because they may all be removed. One of them is the short-sighted and perhaps somewhat perverse unwillingness of the authorities who control admission to practice in both branches of the profession in London, to give full recognition to our Oxford Law Examinations and Degree. Were the tests we apply so recognized as to relieve one who had passed them from all examinations for admission either to the bar or to practice as a solicitor, except such examinations as turn upon those purely practical matters which can only be learnt in a barrister’s chambers or a solicitor’s office, a strong motive would be supplied to men destined for the profession to pursue their legal studies and take their legal examinations here, where we may without vanity say that both teaching and examining are understood much better than by the professional authorities in London. Needless to add that the University would be perfectly ready to allow those authorities every means of satisfying themselves of the character of her examinations, as the General Medical Council is accustomed to supervise the medical examinations of the various medical bodies.

A second cause lies with Oxford herself in her own examinations. Not only do they cramp the teacher, practically debarring him from some topics; but they are so arranged as to prevent the Law School from receiving, with some few exceptions, men of the first intellectual rank. The ablest and best prepared of the students naturally, and rightly, enter the classical school, and find themselves obliged, when they have obtained their degree in it at the age of twenty-three, to quit the University for the work of life. Do not suppose that I for a moment desire to draw such men away from the classical school. No one who has himself passed through the training of that school will doubt its superior value to even the best-arranged Law School, as a part of the education needed to make a good scholar, a good citizen, and a good Christian. What we want is such a revision of our arrangements as will bring men to the University somewhat younger, and will enable those who have obtained honours in the school of Literae Humaniores, and intend to follow the legal profession, to pass into the Law School when they have taken their B.A. classical honours, and devote at least a year (though in the Law Schools of America two years at least are thought needful) to professional studies. At present Oxford is in the absurd position of practically excluding from the legal instruction which the University provides the most promising of her students, the very men who are best fitted to turn it to account in their subsequent career. They spend at school a year which they ought to spend at college, and they spin out their general studies so long that they are unable to obtain that scientific training in the future work of their life which the University has been at such pains to set before them. To find time and make provision in our curriculum for professional as well as general literary studies was one of the chief problems which the Commissioners of 1878-81 ought to have dealt with. Their failure throws back upon the University herself the duty of reform. Other, though less material, causes may be found in the undue prominence which examinations have been suffered to take in the system, and in the very unsatisfactory relations between the teaching provided by the University and that which the Colleges supply, relations which involve much overlapping and a serious waste of teaching power.

I need not pursue this topic into its details. Let it suffice to remark that it is not merely for the sake of the University that one would desire to see her influence upon legal studies extended. Over and above that general liberal education which it is her main business to give, and on which neither law nor any other special study must be suffered to infringe, it is her duty to handle professional studies in a wide and philosophic spirit, to raise them above mere gainful arts into the domain of science, to draw to herself the ablest of those who are entering these professions, the men from whom each profession receives its tone and temper. You all know how much the practical sciences, such as medicine, chemistry, and engineering, have gained by being closely associated with the pursuit of abstract science. No less true is it that men who follow these occupations, and those who devote themselves to the bar or to the church, profit by their association with literary and scientific culture and its central home here, feeling themselves members of a great learned corporation, and carrying away with them the influence of the ideals it has taught them to cherish. It is upon the clergy that this influence has hitherto told most; nor has anything done more to keep the clergy of the Church of England from becoming a caste and to stimulate their activity in those fields of philosophic and historical research wherein they have won so much distinction. One would like to see the University lay the same hold on the other great professions likewise.