Chapter I: The Regions Covered by Roman and English Law

From a general comparison of Rome and England as powers conquering and administering territories beyond their original limits, it is natural to pass on to consider one particular department of the work which territorial extension has led them to undertake, viz. their action as makers of a law which has spread far out over the world. Both nations have built up legal systems which are now—for the Roman law has survived the Roman Empire, and is full of vitality to-day—in force over immense areas that were unknown to those who laid the foundations of both systems. In this respect Rome and England stand alone among nations, unless we reckon in the law of Islam which, being a part of the religion of Islam, governs Musulmans wherever Musulmans are to be found.

Roman law, more or less modified by national or local family customs or land customs and by modern legislation, prevails to-day in all the European countries which formed part either of the ancient or of the mediaeval Roman Empire, that is to say, in Italy, in Greece and the rest of South-Eastern Europe (so far as the Christian part of the population is concerned), in Spain, Portugal, Switzerland, France, Germany (including the German and Slavonic parts of the Austro-Hungarian monarchy), Belgium, Holland. The only exception is South Britain, which lost its Roman law with the coming of the Angles and Saxons in the fifth century. The leading principles of Roman jurisprudence prevail also in some other outlying countries which have borrowed much of their law from some one or more of the countries already named, viz. Denmark, Norway, Sweden, Russia, and Hungary. Then come the non-European colonies settled by some among the above States, such as Louisiana, the Canadian province of Quebec, Ceylon, British Guiana, South Africa (all the above having been at one time colonies either of France or of Holland), German Africa, and French Africa, together with the regions which formerly obeyed Spain or Portugal, including Mexico, Central America, South America, and the Philippine Islands. Add to these the Dutch and French East Indies, and Siberia. There is also Scotland, which has since the establishment of the Court of Session by King James the Fifth in 1532 built up its law out of Roman Civil and (to some slight extent) Roman Canon Law[33].

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Footnote 33:

There is scarcely a trace of Celtic custom in modern Scottish law. The
law of land, however, is largely of feudal origin; and commercial law
has latterly been influenced by that of England.

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English law is in force not only in England, Wales, and Ireland but also in most of the British colonies. Quebec, Ceylon, Mauritius, South Africa, and some few of the West Indian islands follow the Roman law[34]. The rest, including Australia, New Zealand, and all Canada except Quebec, follow English; as does also the United States, except Louisiana, but with the Hawaiian Islands, and India, though in India, as we shall see, native law is also administered.

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Footnote 34:

In these West Indian islands, however, that which remains of Spanish
law, as in Trinidad and Tobago, and of French law, as in St. Vincent,
is now comparatively slight; and before long the West Indies (except
Cuba and Puerto Rico, Guadeloupe and Martinique) will be entirely
under English law. See as to the British colonies generally, Sir C. P.
Ilbert’s _Legislative Methods and Forms_, chap. ix.

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Thus between them these two systems cover nearly the whole of the civilized, and most of the uncivilized world. Only two considerable masses of population stand outside—the Musulman East, that is, Turkey, North Africa, Persia, Western Turkistan and Afghanistan, which obey the sacred law of Islam, and China, which has customs all her own. It is hard to estimate the total number of human beings who live under the English common law, for one does not know whether to reckon in the semi-savage natives of such regions as Uganda, for instance, or Fiji. But there are probably one hundred and thirty millions of civilized persons (without counting the natives of India) who do: and the number living under some modern form of the Roman law is still larger.

It is of the process by which two systems which had their origin in two small communities, the one an Italian city, the other a group of Teutonic tribes, have become extended over nine-tenths of the globe that I propose to speak in the pages that follow. There are analogies between the forms which the process took in the two cases. There are also contrasts. The main contrast is that whereas we may say that (roughly speaking) Rome extended her law by conquest, that is, by the spreading of her power, England has extended hers by settlement, that is, by the spreading out of her race. In India, however, conquest rather than colonization has been the agency employed by England, and it is therefore between the extension of English law to India and the extension of Roman law to the Roman Empire that the best parallel can be drawn. It need hardly be added that the Roman law has been far more changed in descending to the modern world and becoming adapted to modern conditions of life than the law of England has been in its extension over new areas. That extension is an affair of the last three centuries only, and the whole history of English law is of only some eleven centuries reckoning from Kings Ine and Alfred, let us say, to A.D. 1900, or of eight, if we begin with King Henry the Second, whereas that of Roman law covers twenty-five centuries, of which all but the first three have witnessed the process of extension, so early did Rome begin to impose her law upon her subjects. To the changes, however, which have passed on the substance of the law we shall return presently. Let us begin by examining the causes and circumstances which induced the extension to the whole ancient world of rules and doctrines that had grown up in a small city.