Chapter IV: Magistrates and Judges as Makers of Law

We come now to consider the second of the three great sources of law, the Official or Magistrate. He holds an intermediate place between the Jurist on the one hand, and the Supreme Power, whether an Emperor or a Parliament, on the other, speaking with more of plenary authority than the former and with less than the latter. He may at first sight appear to be not really a species by himself, but merely a particular instance of legislation by the Supreme Power in the State, acting not directly (_i.e._ not as itself enunciating legal rules) but mediately, by delegating its function of legislation to a person clothed with its authority and speaking in its name.

This view has in fact been held by some writers. That it is, however, an erroneous view will appear, when we come to scrutinize the Roman facts as the Romans understood them, and the English facts as they were understood in the fifteenth century. Delegation by the supreme legislative authority to some officer or magistrate no doubt may, and frequently does, take place. In England, for example, Acts of Parliament sometimes commit the duty of making rules to an official, such as the Lord Chancellor, or to such a body as the Council of Judges of the Supreme Court of Judicature, or to the Privy Council, that is to say, to a Minister advised by his permanent official staff, who procures the approval of the Crown in Council to what he issues in the form of an Order in Council[113]. Where the function is so delegated, the rules or ordinances made in pursuance of the statute have the full force of the statute that gave power to make them. Here the phenomenon is too common and too simple to need explanation or discussion. It is quite another thing to maintain that the legislative action of the Magistrate is always of this character, a mere instance of the exercise of delegated power. The view is not historically true of the Roman Magistrate—Praetor, Censor, Aedile, or whatever else he may be, firstly because he did not in fact receive any such delegation from the people; secondly, because nobody supposed him to have received it. He was always distinctly conceived of as acting by his own authority, whatever that may be, a matter to which we must presently return. It is not true of the English Judge—whether of the _iudices terrae_ of the Common Law Courts when they take shape in the twelfth and thirteenth centuries, or of the Chancellor of the fifteenth, or of indeed their modern successors, seeing that the theory of the English law and constitution has remained in these points, at least, substantially unchanged. That theory is that the judges of the Common Law Courts are nothing more and nothing less than the officers who expound and apply the Common Law, a body of usages held to be known to the people and by which the people live, usages which existed, in their rudimentary state, as far back as our knowledge extends, most of which have not been formally embodied in any legislative act, but which have been always recognized as binding. Such customary rules are not law because they are declared to be so by the judges; on the contrary the judges enforce them because already, antecedently to their decision, binding law. The judges have never received delegated authority from Parliament. So far as authority has been delegated to them it is the authority of the Crown. But the Crown cannot empower them, and never purported to empower them, to make the law. This is abundantly clear regarding the Common Law Courts, who are merely the exponents of the customs of the land.

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Footnote 113:

Orders in Council are also issued in certain cases under the
prerogative of the Crown without statutory delegation.

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The case of the mediaeval Chancellor is rather different. He is rather more than an exponent of the law. He virtually creates law by his executive action. But he does not do so by any expressly delegated power. At a time when it was well settled that the Crown alone could not (except possibly in some few directions—and even this was not admitted by the House of Commons) legislate, Parliament, so far from giving even by implication any authority to the Chancellor, was jealous of and tried to fetter his action. To allege that what are called the legislative functions of any English judge arise from a commission given him by the Supreme Power, _i.e._ Parliament, to exercise them, is an inversion of historic truth and legal doctrine, an attempt to support a false theory by imaginary facts[114]. It is easier and safer to look at our system in the aspect it bore to those who witnessed the earlier stages of its growth, and to recognize the existence of a peculiar form of law-making—that which naturally and inevitably arises out of the application and administration of the law, especially where that law is largely customary, not embodied in formal declarations of a sovereign’s will. If therefore we are to have a theory of the position of the Magistrate or Judge, a definition of his functions, we must rather call him (however vague the expression may appear to those who prefer the phantom of precision to the substance of truth) the recognized and permanent organ through which the mind of the people expresses itself in shaping that part of the law which the State power does not formally enact. He is their official mouthpiece, whose primary duty is to know and to apply the law, but who, in applying it, expands it and works it out authoritatively, as the jurists do less authoritatively. He represents the legal intelligence of the nation, somewhat as upon one theory of papal functions the bishop of the old imperial See represents the religious intelligence and spiritual discernment of the Christian community on earth; and therefore, like the Pope, he represents the principle of that development which it is his function to guide. As the Romans call their Praetor the living voice of the law, so is the Magistrate always, in England as at Rome, the voice whereby the people, the ultimate source of law, shape and mould in detail the rules which seem fitted to give effect to their constant desire that the law shall be suitable to their needs, a just expression of the relations, social, moral, and economic, which in fact exist among them. The Magistrate is by no means their only voice, for they also express themselves, especially upon urgent questions, by direct legislation; and the more they get accustomed to do so, the narrower does the province of the Magistrate become. But there are many things which legislation cannot do in the earlier stages of a State’s growth, partly because proper machinery is wanting, partly because political dissensions intervene, partly because legal ideas are still fluid, fluctuating, and unfit for expression in terms at once broad and definite. Moreover, in even the most highly organized States, some things always remain which a legislature cannot conveniently deal with, or where its action needs to be constantly supplemented, and perhaps even corrected, by some organ which can work in a more delicate and tentative manner.

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Footnote 114:

If the view in question is defended as being if not historically true
yet a convenient analysis of the actual facts of the case in modern
England, the answer is that the Judge, as we know him to-day, can be
represented as a delegate of Parliament only by arguing that
Parliament commands whatever it does not forbid—a way of making facts
square with a pre-conceived theory, which is not only opposed to
English traditions, but essentially unreal and fantastic.

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So much—that I may not further illustrate what will become clearer from a survey of the Magistrate as he has appeared in history—may be said of Legislation by a State Official in general, whether he be a Roman _Magistratus_ or an English Chancellor. Now let us come to the Roman Praetor.

In the early days both of Rome and of England the administration of justice belonged to the chief magistrate of the State and to the assembly of the people, who in the very earliest days had normally acted together. In England, although the judicial functions of the Assembly survived for some purposes (as they survive to-day in Parliament), the conduct of ordinary judicial work which could not conveniently be exercised by the Assembly passed to the king, and when judges appeared, they were his officers. In Rome also the king was the head of the judicial system: and when the kingly office was abolished, the functions that had been his were transferred to the two Consuls, who were virtually annual kings. After a time, owing to political disputes which need not be described here, a third annual magistrate was added, called the Praetor[115], who, while capable of exerting nearly all the executive power of the Consuls, received the administration of justice as his special province. As the city grew and litigation increased, more Praetors were added. The first had been appointed in B.C. 367; the second, who presently became charged with suits in which one or both of the parties did not enjoy Roman citizenship, dates from about B.C. 247. He came to be called _Praetor peregrinus_, while the original Praetor was described as the Praetor of the City (_urbanus_). The latter remained the head of the judicial system, and I shall therefore speak of the Praetor in the singular. Other Praetors were added, partly in order to act in the provinces, partly in order to undertake special kinds of jurisdiction. By the time of Trajan there were eighteen of them.

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Footnote 115:

The name Praetor meant Leader, and was originally applied to the
Consuls. The Praetor’s competence for military functions was equal to
that of the Consuls. He had both _imperium_ and _iurisdictio_.

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In the later republican period we may speak of the Praetor as being partly a Judge, partly a Minister of Justice who directed the general working of the Courts. It was his duty to issue when he assumed office a statement of the rules by which he intended to guide his judicial action during his year, as well as a table of the formulae in which applications ought to be made to him for the exercise of his functions. These rules were published in a document called the Edict. It contained a concise statement of the cases in which he would allow an action to be brought, and of the pleas which he would admit as constituting defences to actions. This statement did not purport to supersede the old actions and rules which had either come down as a settled part of the ancient customary law, or had been enacted by any statute of the popular assembly. The Praetor always held himself to be bound by statutes[116]. But his Edict added materially to the old actions and rules, incidentally modified them, ultimately did supersede many of them. He awarded remedies which the older law had not awarded. He recognized defences (_e.g._ in cases of fraud) which the old law had not recognized. He provided means of enforcing rights more effective than those which the old law had provided. As the later Romans said, he acted for the sake of aiding, or supplying the omissions of, or correcting, the old strict law, with a view to the public advantage[117].

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Footnote 116:

The Praetor, said the Romans, does not make law (_Praetor ius facere
non potest_). Yet they also called the rules which emanated from him
_iura_ (see Cic. _De Invent._ ii. 22): and the whole body of rules due
to his action was in later times described as _ius honorarium_, _ius
praetorium_. Sometimes a right resting on _ius_ is contrasted with one
depending on the protection (_tuitio_) of the Praetor: Ulpian in
_Dig._ vii. 4. 1. Those who put the Praetor’s authority highest called
the Edict _lex annua_, says Cicero, _Verr._ ii. 1. 42. This
uncertainty of language corresponds to the peculiar character of these
rules, which in one sense were, and in another were not, Law.

Footnote 117:

‘Ius praetorium est quod praetores introduxerunt adiuvandi vel
supplendi vel corrigendi iuris civilis gratia propter utilitatem
publicam.’ Papinian in _Dig._ i. 1. 7.

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Each Edict was valid only for the Praetor’s year of office. Each succeeding Praetor, however, usually repeated nearly all the declarations that had been contained in the Edicts of his predecessors, though it often happened that a new Edict introduced some improvement in point of form and expression, or perhaps so varied, or added to, the announcements in the last preceding Edict as to introduce an improvement in substance, for when a Praetor thought that it was necessary to promise a new remedy by action, or to recognize a new plea, it was his duty to insert it. In this way the practice of the Courts was continually changing, yet each single change was so slight that the process was very gradual, hardly more rapid than that which has gone on, at certain periods in the history of English law, through the action of the Court of Chancery, or that which went on in the Court of King’s Bench under Lord Mansfield. There was no permanent enactment of a new rule, for a Praetor’s declarations bound himself only and not his successors[118]. But as his promises were usually repeated by his successors, a Praetor when he promised a new remedy, practically created a new right, or enlarged and confirmed an old one.

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Footnote 118:

His declarations did not originally, in strictness of law, bind even
himself, and it was found necessary to enact, by a _lex Cornelia_ of
B.C. 67, that the Praetor should not depart from the statements of his
Edict (‘ut praetores ex edictis suis perpetuis ius dicerent, quae res
cunctam gratiam ambitiosis praetoribus qui varie ius dicere solebant,
sustulit.’ Ascon. _in Cic. Pro Cornelio_, 58.)

The Edict regularly issued at the beginning of each year was called
_Edictum perpetuum_, as opposed to _Edictum repentinum_, one issued
for an emergency.

To us moderns the function thus committed to a Magistrate seems a large function, and his power a possibly dangerous power. No modern constitutional State would vest such a power either in a Judge or in a Minister of Justice. But to the Romans the Praetor is (above all things) the representative of the Executive and Judicial Power of the State. He is the State embodied for certain purposes. He is something more than a mere minister, whom the people have chosen to serve them in a certain capacity. He represents the majesty of the State over against the people, and deals with them rather as a Ruler than as a Servant. Few nations have formed so strong and definite a conception of State power as the Romans did; and none, perhaps, expressed it so distinctly in the authority, very wide, very drastic, and yet eminently constitutional, which they entrusted to their great State officials. The conception was to them so dear, or so necessary, that even when the misdeeds of a monarch had led to the abolition of monarchy, they did not restrict the magisterial power itself, but divided it between two co-ordinate magistrates whose co-existence made each a check on the other; and when the powers of these two (the Consuls) were subsequently found to need limitation, they devolved upon other magistrates (the Tribunes) the right to step in and check the exertion in some particular instance of the consular power.

The Praetor, therefore, having (like the Consul) _imperium_ (_i.e._ the power of issuing commands as an executive officer, and of compelling obedience to them by putting forth material force), is a stronger personality than the English Common Law Judge, and can act more boldly and more effectively. We hear of no demand for a restriction of his functions, but only of a statute which checked arbitrary discretion by requiring him to administer the law in accordance with his Edict. Moreover, while the English judge is, down till the Revolution, an official removable by the Crown, the Praetor has no one over him, and has, therefore, not only a more unfettered discretion in carrying out his judicial and quasi-legislative mission, but also a clearer sense of his duty to do so, because this is the function which the nation expects him to discharge. The English Judge is primarily a judge, appointed to pronounce a decision: the Praetor is also an executive magistrate, placed at the head of the whole judicial administration of what was originally a small community, with the duty of providing that the system works properly. His wider powers give him a sense of the obligation laid on him to see that justice is duly done, that the system of procedure is such as to enable justice to be done, that wrongs for which there ought to be some remedy have some remedy provided against them; in short, that the law as a machinery for setting things right and satisfying the demands of the citizens is kept in proper order, with such improvements and extensions as the changing needs of the nation suggest. His business is not merely to declare the law but to keep the law and its machinery abreast of the time.

The functionary who in England offers the nearest analogy to the Praetor, an analogy which has been so often remarked that only a few words need be spent on it, is the Chancellor. The Chancellor of the fourteenth, fifteenth, and sixteenth centuries was the organ of the prerogative of the Crown on its judicial side, and as that prerogative was then very wide, he was thus invested with an authority half judicial, half administrative, not unlike that of the Roman magistrate. As it belonged to the Crown to see that justice was done throughout the realm, and the means for doing it provided, the Chancellor was expected and obliged to supply new machinery if the old proved inadequate, and this he did in virtue of an authority which, in its undefined width and its compulsive power, resembled the Roman _imperium_. Accordingly when the development of the Common Law Courts stopped in the fourteenth century because the Common Law judges refused to go beyond the remedies which the Courts provided, and made only a limited and timid use even of their power of issuing new writs _in consimili casu_, the Chancellor went on. From the time of Edward the Third petitions to see right done, which had been previously addressed to the Crown, began to be addressed to the Chancellor, and the extraordinary range of his powers was expressed by the phrase that he acted in matters of the King’s grace and favour, that is to say, he acted where the subject could not demand a remedy as of common right from the ordinary Courts of the land. Thenceforward the range of action of the Common Law Courts did not so much need to be extended, though a certain slight measure of development continued in them even as late as the days of Lord Mansfield, whose extension of the scope of the ‘Common Counts for money had and received to the use of the plaintiff’ has a faint flavour of praetorian methods. It was partly because the Common Law judges had halted that the Chancellor, if I may use a familiar expression, took up the running, and exerted the powers which the sovereign entrusted to him, and which, as keeper of the sovereign’s conscience, he was held to be justified in exerting so as to provide fresh and efficient remedies for wrongs that defied either the rigid system of procedure or the feeble executive capacity of the Common Law Courts. During this period the Chancellor, though a judge, is also much more than a judge, and it is as a great executive officer, clothed with the reserved and elastic powers of the sovereign, that he is able to accomplish so much. Yet his action is not so free as was the Praetor’s, for he does not directly interfere with the pre-existing Courts. He may walk round them: he may forbid a plaintiff to use the judgements they give; but he cannot remould their methods nor extend their remedies. The Praetor, on the other hand, is in a certain sense the head of all Courts, so that his action covers the whole field of law. After a time, however, the creative energy of the Chancellor slackens, partly because the prerogative of the Crown was being narrowed, partly, apparently, from the example of the other Courts, for when Chancery decisions also began to be reported like those of other tribunals, he naturally felt himself more and more fettered by the record of the decisions of his predecessors. In the eighteenth century, precedents gather round the Chancellor and fence him in: he cannot break through so as to move freely forward on new lines of reform. He is like a stream which, as it deepens its channel, ceases to overflow its banks.

Before I note a further point of difference between the Praetor and our English Judiciary, and a further reason why the development of the law by the latter was so much less bold, I must advert to one feature which the Roman and English systems have in common. In both law is made through the control of procedure. The Praetor promises to give a certain action, or allow a certain defence, in certain states of fact; _i.e._ if a plaintiff alleges certain facts, the Praetor will allow him to sue, and will see that judgement is given in his favour should those facts be proved, while if a defendant alleges certain facts, the Praetor will allow these to be set forth in a plea, and will see that judgement is given in his favour if the facts as stated in the plea are proved. Similarly the English Courts are concerned not with abstract propositions of law, but with remedies. It is by granting a remedy, _i.e._ by entering judgement for the plaintiff or the defendant in pursuance of certain reasons which they deliver publicly, that the Courts become sources of law. And though the Chancellor goes further than the Common Law Courts, because in the early days of his action he laid hold of a person under circumstances to which no rule of law had been previously declared to apply, and compelled him to appear as defendant in a suit, yet the Chancellor also never delivers a legal opinion except for the purpose of explaining the decree which he issues for adjusting the rights of the parties to a concrete dispute. So far, therefore, the Roman and the English officials moved on similar lines. Both were concerned with remedies; both acted through their control of procedure.