Chapter XXIV: Some General Reflections: Changes in Theory and in Sentiment (1)

REGARDING MARRIAGE.

A few words more to sum up the general result of our survey. We have seen that the relations of the wife to the husband have been regulated sometimes by one, sometimes by the other of two systems, which have been called those of Subordination and Equality[233]. In all countries custom and law begin with the system of Subordination. In some, the wife is little better than a slave. Even at Rome, though she was not only free but respected, her legal capacity was merged in her husband’s.

-----

Footnote 233:

By Equality I do not mean any recognition of Identity or even
Similarity as respects capacity and practical work (though the
tendency is in that direction), but the equal possession of private
civil rights and the admission of an individuality entitled to equal
respect and an equally free play of action. Such Equality is perfectly
compatible, given sufficient affection, with a complete identification
of the consorts in the harmony which comes of the union of diverse but
complementary elements.

-----

This system vanishes from Rome during the last two centuries of the Republic, and when the law of Rome comes to prevail over the whole civilized world, the system of Equality (except so far as varied by local custom) prevails over that world till the Empire itself perishes.

In the Dark Ages the principle of the subordination of the wife is again the rule everywhere, though the forms it takes vary, and it is more complete in some countries than in others. It was the rule among the Celtic and Teutonic peoples before they were Christianized. It finds its way, through customs conformable to the rudeness of the times, into the law of those countries which, like Italy, Spain, and France, were only partially Teutonized, and retained forms of Latin speech. It holds its ground in England till our own time, though latterly much modified by the process which we call the emancipation of women, a process which, under the influence of democratic ideas, has moved most swiftly and has gone furthest among the English race in North America. But in our own time the principle of equality has, in most civilized countries, triumphed all along the line, and so far as we can foresee, has definitely triumphed. One must imagine a complete revolution in ideas and in social habits in order to imagine a return to the system of Subordination as it stood two centuries ago.

As there have been two systems determining the relations of husband and wife in respect of property and of personal control, so also have there been throughout all history two aspects of the institution of marriage, one in which the sensual and material element has predominated, the other in which the spiritual and religious element has come in to give a higher and refining character to the relation. In this case, however, it is not possible to make the relative importance of these two aspects synchronize with the general progress of civilization, nor even with the elevation of the position of women. It is true that among barbarous and some semi-civilized races the physical side of the institution is almost solely regarded, and that we may suppose a remote age when primitive man was in this respect not much above the level of other animals. But there have been epochs when civilization was advancing while the moral conception of marriage, or at any rate the popular view of marriage as a social relation, was declining. The tie between husband and wife in the earlier days of Rome was not only closer but more worthy and wholesome in its influence on the lives of both than it had become in the age of Augustus. Christianity not only restored to the tie its religious colour, but in dignifying the individual soul by proclaiming its immortality and its possibility of union with God through Christ gave a new and higher significance to life as a whole, and to the duties which spring from marriage. The greatest advance which the Christian world made upon the pagan world was in the view of personal purity for both sexes which the New Testament inculcated, a view absent from the Greek and Italian religions and from Greek and Latin literature, though there had been germs of it in the East, where habits of sensual indulgence more degrading than those of the West were opposed by theories of asceticism, which passed into and tinged primitive and mediaeval Christianity.

The more ennobling view of love and of the marriage relation held its ground through the Middle Ages. There was plenty of profligacy—as indeed the ideal and the actual have never been more disjoined than in the Middle Ages. But in spite of profligacy on the one hand, and the glorification of celibacy on the other, and notwithstanding the subjection of women in the matter of property and even of personal freedom, the conception of wedded life as recognized by the law of the Church and enshrined in poetry remained pure and lofty. That the Reformation took away part of the religious halo which had surrounded matrimony may be admitted. Whether this involved a practical loss is a difficult question. It may be that, in their anxiety to be rid of what they deemed superstition, and in their disgust at the tricky and mercenary way in which ecclesiastical lawyers had played fast and loose with the intricate rules of canonical impediment, the Reformers of Germany, Scandinavia, and Scotland forgot to dwell sufficiently on the fact that though marriage is a civil relation in point of form and legal effect, it ought to be, to Christians, essentially also a religious relation, the true consecration of which lies not in the ceremonial blessing of the Church, but in the solemnity of the responsibilities it involves. Yet it is not clear that, in point of domestic happiness or domestic purity, the nations which have clung to the mediaeval doctrine stood a century ago, or stand now, above those which had renounced it. General theories regarding the influence of particular forms of religion, like theories regarding the influence of race, are apt to be misleading, because many other conditions have to be regarded as well as those on which the theorist is inclined to dwell.

Whoever regards the doctrines of the Roman Catholic Church respecting marriage and realizes her power over her members will expect to find a higher level of sexual morality in Roman Catholic countries than he will in fact find. So on the other hand will he be disappointed who accepts that view of the superiority in social virtues of peoples of Teutonic stock which finds so much favour among those peoples, for dissolutions of the marriage tie have latterly grown more frequent than they formerly were among Protestant and Teutonic nations, and are apparently less condemned by public opinion than was the case in older days.

The material progress of the world, the mastery of man over nature through a knowledge of her laws, the diffusion of knowledge and of the opportunities for acquiring it, are themes which ceaselessly employ the tongues of speakers and the pens of journalists, while they swell with pride the heart of the ordinary citizen. But they are not the things upon which the moral advancement of mankind or the happiness of individuals chiefly turns. They co-exist, as the statistics of recent years show, with an increase over all, or nearly all, civilized countries of lunacy, of suicide, and of divorce.

XVII
_INAUGURAL LECTURE_[234]

THE ACADEMICAL STUDY OF THE
CIVIL LAW

Narrow as is the sea that parts England from the continent of Europe, it has cut her off as effectually from many continental influences as if she lay far out in mid-Atlantic. When it is considered how close are our affinities of blood with the Low-German races, and how intimate during the Middle Ages were our relations, intellectual as well as political, with the whole of Western Europe, the individuality of the English people and its institutions appears singularly well-marked; and one is surprised to see in how many points the great nations of the continent resemble one another and understand one another, while all alike differ from us, and are comparatively incomprehensible to us. This strangeness of England is what most strikes the foreigner who comes among us; be he Frenchman, German, Spaniard, or Italian, he seems less at home in England than anywhere else in Christendom. As in the woodland wealth of our country, as in the architecture of our towns and the structure of our houses, so also in the social usages and mental habits of Englishmen one discovers something peculiar, something bearing witness to a prolonged isolation, to an exemption from those influences, speculative as well as practical, which have operated on all or nearly all the other members of the European commonwealth.

-----

Footnote 234:

Delivered at Oxford, February 25, 1871, on entering on the duties of
the Regius Professorship of Civil Law.

-----

Such isolation has been in no respect more marked or more fruitful in results than in the case of our law. In spite of the immense power of the mediaeval church, in spite of the influence of the universities, and of the strangers who flocked to them from all quarters, the Roman jurisprudence exerted a comparatively slight influence upon the technical development of our law and the formation of our habits of legal thought. Here, where the language, and to a great extent the customs of the people, were of Teutonic origin, it found a less congenial soil than in Italy or France, while there were no such political associations with the Roman name as those which gave the Corpus Juris its authority in Germany. Whatever be the cause, it is clear that Roman law was never thoroughly domesticated in England. True it is that one of the first notices we have of the existence of our University is that which mentions the Lombard Vacarius as lecturing on law (doubtless on the Digest of Justinian) at Oxford, under the patronage of Archbishop Theobald, in the days of King Stephen[235]; and there is abundant evidence that the study was regularly pursued there down till and in the sixteenth century. The statutes of the older colleges make provision for some of the fellows proceeding to degrees in law; and indeed the only law degrees Oxford has given, since those in canon law were abolished by King Henry the Eighth, have been degrees in civil law. But the customary or common law, unrecognized in the universities, gained exclusive possession of the seats of legal study in London. That hostility to the pretensions of the foreign laws which had been so forcibly expressed by the barons at Merton in Henry the Third’s time, and again by the Parliament of Richard the Second, maintained ever after a watchful and jealous attitude. Persons who had mastered Roman law at Oxford were obliged, when they practised in the courts at Westminster, to disguise or disclaim any appeal to its authority; and when the Reformation finally broke the link between England and Rome, and in doing so loosened the ties that bound English men of letters to the general movement of European learning and thought, the study of the canon law virtually expired among us, while that of the Civil Law maintained only a feeble and flickering life[236]. Its practical utility (except to practitioners in the ecclesiastical courts) was apparently at an end; and in the cloud of dullness and sluggishness that settled down upon Oxford and Cambridge at the end of the seventeenth century, it only shared the fate of other studies which had as much to commend them to an active and curious intellect. A few distinguished publicists and lawyers, such as Arthur Duck, Selden, Hale, Holt, and those two brightest ornaments of the English bench, Lord Hardwicke and Lord Mansfield, were well versed in its rules, but the great mass of English lawyers regarded it with suspicion and dislike, and the very praise which Hale bestows testifies to the slight interest felt in it. ‘He set himself much,’ says Bishop Burnet his biographer, ‘to the study of the Romane law, and though he liked the way of judicature in England by juries much better than that of the civil law, where so much was trusted to the judge, yet he often said that the true grounds and reasons of law were so well delivered in the Digests, that a man could never understand law as a science so well as by seeking it there, and lamented much that it was so little studied in England.’

-----

Footnote 235:

‘Oriuntur discordiae graves, lites et appellationes antea inauditae.
Tunc leges et causidici in Angliam primo vocati sunt, quorum primus
erat magister Vacarius. Hic in Oxenefordia legem docuit, et apud Romam
magister Gracianus et Alexander, qui et Rodlandus, in proximo papa
futurus, canones compilavit.’—(Gervas. Dorob.; _Act. Pontif Cantuar.;
Theodbaldus_.)

Footnote 236:

For some time after the breach Englishmen used to resort to
continental universities, and there, of course, they found Roman law
taught; but this practice died out before very long.

-----

The ancient rivalry of the Civil and the Common law proved eventually the cause of mischief to both. Having reigned bn 494.png supreme in the universities, the civil law had never taken root in the Inns of Court, and when it fell in the universities it fell utterly. On the other hand, the common lawyers, whose study was originally not recognized in Oxford or Cambridge, were well enough content with the position they had obtained for it in London, and do not seem to have seen how much was to be gained by introducing it into the ancient seats of learning. Thus both systems, to the loss as well of the profession as of the universities, came to be neglected in the very places where they might best have been cultivated in a philosophical spirit; and it was not until Mr. Viner founded his Chair in A.D. 1756 that English law was recognized in Oxford as an academic study, while in Cambridge no provision was made for the teaching of it until the beginning of the present century.

That isolation of England to which the neglect of the Civil Law may be ascribed has of late years perceptibly diminished. Owing partly to the more frequent and easy intercourse which improved means of communication have produced, partly to the removal of old national prejudices, partly to that increased recognition of the power of ideas which is commonly associated with the growth of democracy, civilized Europe has within the last eighty or ninety years become much more of a single intellectual commonwealth than it has been at any time since the Reformation, perhaps, indeed, since the fall of the Roman Empire. The long-standing jealousy of the Civil Law as a foreign system, associated with the overweening pretensions of emperors and popes, has at last vanished. A century ago this feeling was still so active, that Lord Mansfield’s enemies found it worth while to charge him with having, as a Scotsman, an undue partiality for the Roman law, and designing, by means of its despotic principles, to sap the liberties of Englishmen—‘corrupting by treacherous arts the noble simplicity and free spirit of our Saxon laws;’ though as a matter of fact, Lord Mansfield left Scotland at the age of three, and the use which he made of his knowledge of Roman jurisprudence was made by applying its rational principles to the elucidation of the civil, and indeed chiefly of the commercial parts of the English system. Such prejudices seem now to lie far behind. We live in the midst of a general unsettling of respect for whatever exists, which does not spare the laws or even the constitution of England, and welcomes new ideas from every quarter. Thus the influence of the great German civilians begins to tell upon English students, while the rise of a vigorous historical school in England has quickened our curiosity in whatever helps to explain the ancient and the mediaeval world. The feeling so awakened has happily coincided with an interest in the scientific amendment of the form of English law, different from that desire to improve and correct its substance of which Bentham was the first exponent, and which inspired the labours of Romilly and Brougham.

The efforts of these great men were chiefly directed to the removal of harsh enactments, of rules due to economic errors, and of technicalities which defeated the ends of justice. Their modern successors, finding the law purged of its grosser faults, are rather concerned with its reduction into a more orderly and systematic shape. The three leading questions of reform at this moment are questions of form, relating not so much to substance as to the shape and form which the law ought to take. What are the best means of fusing legal and equitable procedure[237]? How may Acts of Parliament be drawn more concisely and symmetrically? How are we to frame, out of the vast and chaotic mass of our reported cases and statutes, an organized body of rules, a Digest or a Code? Finding themselves thus brought face to face with the problem which Justinian partially solved, and which several modern states, as notably France, Austria, Prussia, and Italy have again had to solve[238], English lawyers are being driven to examine the means whereby codification was accomplished, and the results that followed it. They feel that for the execution of so great a work men are needed who have had something more than an empirical training, and are disposed to believe that in any systematic course of legal history and philosophy which might be devised to form the mind of the jurist as preliminary to his purely professional studies, a chief place should be assigned to the study of the Roman law. Thus, what with our own actual needs, what with the influence of the scientific spirit of the Continent, there has been awakened in England an interest in the Civil Law and an estimate of its worth which, although still matter rather of faith than of sight, is yet strong enough to give the University of Oxford not merely a motive for endeavouring to revive the study, but a reasonable hope that it may be revived with success, to the substantial benefit as well of the universities themselves as of the legal profession.

-----

Footnote 237:

This was effected by the Judicature Act of 1873.

Footnote 238:

To these one may now add the new German Empire, which was coming into
being when this Lecture was delivered in A.D. 1871. A Civil Code for
the Empire began to be prepared in 1872 and came into force in 1900.

-----

To prove that Roman law does deserve in England, and especially from the University, more attention than it now receives may well be thought, at least in Oxford, a spot which was long its home, a superfluous labour. That it fills so large a place in the world’s history, that it is the fruit of so great an expenditure of human genius and industry, is of itself a sufficient reason why it should engage the labours of a learned body which has, in Bacon’s words, taken all knowledge to be its province. I may therefore content myself with touching upon some of the purposes which the study may be made to serve, and indicating some of the directions in which it may most usefully be pursued; premising always that academical study has two objects, the furtherance of learning and discovery, and the preparation of young men to be, not merely useful and active in their future occupations, but also, in the widest sense of the word, good citizens. These two objects have been sometimes, under the names of Research and Education, opposed to one another, and no small controversy has been maintained touching their respective claims. Are they not in truth closely intertwined? since the greater the zeal wherewith a study is pursued, so much the greater is the teacher’s influence on the taught; and since experience shows that when the work of education has been neglected by schools and universities, such neglect has not been caused by any absorption in abstract studies, but by mere dullness and self-indulgence, as fatal to study as they can be to education.

The various utilities of a knowledge of the Roman law fall into two classes: those which connect it with the liberal studies of a university, and specially with classical philology, with history, and with ethics; and those which belong rather to the faculty of law, and entitle it to a place in a strictly professional curriculum.

Taking the former of these heads first, there is no more obvious reason for pursuing the study than the light which it throws upon Roman history, which is, it can hardly be too often repeated, substantially the foundation of all modern European history. No people was ever so thoroughly permeated by legal ideas as were the Romans; none rated the dignity of the profession so high, spent so much pains in the elaboration of legal rules, and formed, let it be added, so worthy a conception of what law ought to be. Hence the whole political history of the Roman people and state is so involved with its legal institutions, that it can be understood only when regarded as derived from and conditioned by them. This is signally true not only of the regal and earlier republican period—in all early states of society, legal customs do for a people what a political constitution does in later times, or, in other words, public and private law are closely intertwined—it is true also of the republic in the days of Sulla and Julius Caesar, and of the long period of the Empire. Most of the constitutional arrangements of the Roman state depended upon those of private law, and many of the gravest political questions turned upon legal doctrines. The subject of the Agrarian laws, for instance, is intimately involved with the legal conception of possession, as distinct from ownership, and can hardly be mastered without a knowledge of technical theory. The structure of the _gens_, the nature of the agnatic tie and of the _patria potestas_, the judicial character of the chief administrative magistrates, the doctrine of adoption—all and each of them exerted a powerful influence on the political fortunes of Rome. Adoption, for instance, became from time to time under the Empire the means of working a system of appointment to the sovereign power, which could show the merits without the evils of hereditary succession. I forbear to dwell on the number of historical incidents, like that of Virginia and Appius Claudius, or of allusions in poetical and philosophical writers, such as those which every scholar remembers in Horace, Ovid, Juvenal, and most of all in Cicero, which only a knowledge of the civil law can elucidate. A student of the classics need not read the Corpus Juris merely for the sake of understanding these, any more than one is bound to read Coke or Hale for the sake of better seeing the point of the numerous legal phrases in Shakespeare. Few would go so far as the enthusiastic civilian who maintained that every divine ought to learn Roman law, because there are passages in the New Testament which a knowledge of it serves to explain. But, though every scholar need not, some scholars certainly ought; for there is much in the literature, and, indeed, in the literary spirit and feeling of the Romans, which is due to legal influences, and which can be fully apprehended and expounded by those only who have made themselves familiar with these influences in their source. In particular, such study is necessary in order to appreciate the character of the Empire in its relation to the peoples of the Mediterranean whom it embraced. Rome’s great gift to the world was her jurisprudence; and the most interesting chapter in her history is that which traces, coincidently with the gradual extension of Roman citizenship and Roman law to the subject races, the steady amelioration in its positive rules, and its development from a harsh and highly technical system into one grounded on principles of reason and justice, principles which are indeed common to all civilized peoples, but which the Roman jurists were the first to expound and apply. To this great work was devoted, from the time of Augustus onwards, nearly all the genius and labour, not of Rome merely but of the Roman world, which was not expended on abstract speculation; and it is more than an accident that long after the language of Virgil and Cicero had become debased in the hands of florid rhetoricians and soulless versifiers, its purity and its nervous precision were preserved in the hands of men like Papinian and Modestinus.

A second utility which may be claimed for our study, is its bearing upon the history of mediaeval and modern thought. When the Western Empire perished amidst the storms of the fifth century, its law did not perish with it, but remained a chief factor in European history, more widely, although less directly, influential. The barbarian conquerors, who brought with them only the rude customs by which they had lived in their native forests, soon felt the need of a regular legal system, and were glad to recognize that which they found subsisting. They allowed their subjects, the Latin-speaking provincials, to use it; in some countries they came to use it themselves; parts of it were collected and published in such compilations as the Breviarium of the West Gothic Alarich the Second and the Lex Romana Burgundionum. At the close of the Dark Ages, the study of the original texts revived, first in Italy, then in France, England, and Spain. Schools of law arose all over Europe. Immense pains were spent on the interpretation of the Digest, and it became thenceforth, for many generations, the foundation of the education and a principal part of the knowledge of every lawyer and publicist. As the mighty fabric of ecclesiastical power grew up, it created with the help of Roman materials its own body of laws, varied of course by the nature of the subjects, and coloured by religious ideas, but substantially Roman after all. In this, as in so much else, the Papacy was, to use the forcible expression of Hobbes, ‘the ghost of the old Empire, sitting on its tomb and ruling in its name.’ And thus, in the hands of the very ecclesiastics who forbade its study, as hostile to their own pretensions and favourable to those of their antagonist, the Emperor, the doctrines of the Civil Law obtained a wider range than ever before. As its continued existence was one chief cause of the fantastic belief in the continued life of the Roman Empire, so that very belief became in turn the cause of its ultimate reception, in Germany, where it had not prevailed, no less than in Italy, where it had prevailed continuously, as effective and binding law. Being studied by all the educated men, the poets, the philosophers, the administrators of the Middle Ages, it worked itself by degrees into the thought of Christendom, losing the traces of its origin, as it became part of the common property of the world. A knowledge, therefore, of what it was, and of how it influenced mankind, helps to explain much which might otherwise have remained obscure in the literature of the Middle Ages and the Renaissance—much whose bearing a modern finds it hard to grasp, just because law holds a different place in his conceptions, and because he does not realize the power it exerted over untrained and uncritical minds. Theology is an instance, but by no means the only instance, of a branch of inquiry over which legal notions once exercised a sway they have now lost.

The Middle Ages had received from antiquity, besides the Scriptures, only three bodies of literature containing systematized thought—the Church Fathers, the philosophy of Aristotle, known through translations, and the Roman law. The last counted for less than the two former in moulding ideas. But it counted for a great deal.

The history of law and of the evolution of legal conceptions, although in one aspect a professional subject, may also claim to be regarded as a branch of general academical study. Within the last few years, the application to it of the comparative method of inquiry has given it a new significance and interest, has enabled it to teach us much respecting the structure of primitive society, and has made it the means of illustrating many curious phenomena in the philosophy and politics of more recent times. Now to the student of legal history a knowledge of Roman Law is indispensable: first, because it was an independent system, uninfluenced by any preceding one, save to some slight extent by the customs of Greek cities, whereas all subsequent European systems have been influenced by it; and secondly, because it alone presents an uninterrupted continuity of development, stretching over ten centuries from the Twelve Tables to Justinian, and later still through the dynasties of Constantinople. No sudden intrusion of a new element, like that caused in England by the Norman Conquest, nor even the internal strife which altered the form of the Roman state, disturbed that equable and self-consistent expansion and amendment of the laws of Rome, which the widening relations of the city, as a commercial, a conquering, a world-embracing community, made necessary. Legislative power passed from the patrician curies to the popular Assemblies of the nation, from the Assemblies to the Senate and the Emperor, but the conduct of legislation remained in the hands of an educated profession, and the harmonious evolution of principles was not interrupted. Nearly all the phenomena which the history of law in other countries presents, find their parallel and explanation in the history of its growth at Rome: nor is the study without a practical value for the modern legislator. The nature and limits of the jurisdiction of our own Court of Chancery are better understood when compared and contrasted with the functions exercised by the Praetor as exponent of the _ius gentium_. The codification of Justinian has been constantly cited, and occasionally examined, in recent discussions respecting the propriety and the methods of digesting and codifying English law.

Assuming, without further argument, the claims of the Civil Law to be recognized among the general liberal studies of the University, I may proceed to consider its special utility to the lawyer, and the reasons for giving it a place among the studies of the legal faculty. Some zeal has of late been shown for the revival of such studies in England and in Oxford; and it will be generally admitted that young lawyers ought to be more regularly instructed in the science and art of their profession than they are now; that much of this instruction may be, and ought to be, given at the University; and that, apart altogether from the service to be rendered by teaching, it would be a gain to the country if law were cultivated and written upon at the Universities, in the same philosophical spirit, and with the same systematic fullness, as in the schools of Germany. There a great writer is often also a great teacher. Such were Savigny and Thibaut; such was that illustrious man whom Heidelberg lost five months ago[239]—a man whose learning was so vast and well-digested, whose expositions of law were so penetrating and luminous, so philosophical in method, so eloquent in language, so animated in delivery, that to have listened to him was to have gained a new conception of the power of oral teaching.

-----

Footnote 239:

Dr. K. A. von Vangerow.

-----

An obvious ground for cultivating it, and one likely to have weight with the practising lawyer, is the immense influence it has exerted on the jurisprudence of modern Europe. As respects England, this influence is matter rather of antiquarian interest than of practical utility. Much of our law, especially of our mercantile law, and of that which is administered in courts of equity, may indeed be traced to a Roman origin; while the Court of Admiralty, and even to some extent, the probate and matrimonial Courts which have now replaced the ancient ecclesiastical tribunals, owe a more direct allegiance to the imperial jurisprudence. In the words of Lord Chief Justice Holt, ‘Inasmuch as the laws of all nations are doubtless raised out of the ruins of the Civil Law, as all governments are sprung out of the Roman Empire, it must be owned that the principles of our law are borrowed from the Civil Law, and therefore grounded upon the same reason in many things[240].’ But the bulk of English law is so vast, requiring so much labour to master it, and that which it has borrowed from other systems is now so thoroughly transformed and Anglicized, that one cannot honestly advise the student, on the mere ground that in some departments it has drawn freely from Roman sources, to spend time in examining those sources, instead of going straight to English text-books. It is not so much because English law is like Roman, but because it is unlike, that the study is really to be recommended. Similarities, whatever their historical origin, are usually found to rest on that wish to follow reason and to secure what is practically convenient, which have moulded the rules of all highly finished systems. They need no further explanation. But dissimilarities suggest difficulties. Inquiry is provoked; reflection is stimulated; ideas emerge which may prove fruitful.

-----

Footnote 240:

12 Mod. 482.

-----

A lawyer who loves and appreciates his subject will hardly be content without knowing something of the rules and doctrines which prevail in other nations; and a man in brisk practice will find many occasions in which a knowledge of foreign or colonial law is of great value to him. Now in the acquisition of almost any foreign system of law, a knowledge of the outlines of the Civil Law renders the same kind of service which a knowledge of Latin renders in the acquisition of one of the Romance languages; and just as one would advise a man who desired to learn French Spanish and Italian to begin by learning Latin, so the shortest way to know something of German Dutch and French law is to study the principles of the Civil Law, which are a master-key to that of all these countries. The House of Lords in Scotch appeal cases, the Privy Council in appeals from many of our colonies, as, for instance, from Lower Canada, British Guiana, the Cape, and Mauritius, administer a modified Roman law. And as the doctrines of international law are in their source Roman, they can be best understood and applied by one who is familiar with them in their original form as drawn from that imperial law which, when they first sprang up, was still dimly conceived of as extending its authority over all the states of Christendom.

I have placed last what I venture to believe to be the weightiest practical reason for pursuing this study, although, at the same time, that reason which it is most difficult to expound and establish—its educational and scientific worth as forming and strengthening those habits of mind in the possession of which a lawyer’s excellence consists. In proof of this worth it is not sufficient to cite the examples of Germany, France, and Scotland, where the education of a legal practitioner is based upon the civil law; for the Corpus Juris is in all these countries the foundation of their municipal systems, while in Scotland and some parts of Germany, it is to some extent actually still in force. The reason which we in England have for urging that the study of Roman law should precede and accompany that of the law of our own country, must be sought in a perception of the defects, certainly obvious enough, of modern English jurisprudence. Here it is necessary to distinguish what laymen, and even lawyers, have often confounded—defects of substance and defects of form. Now, in point of substance, the English law is, with the exception of certain provisions of the law of real property, and of the law relating to married women—provisions which the progress of political change seems likely to remove—no whit inferior to any other body of law; almost always fair and reasonable, conformed to the dictates of good sense, reflecting worthily the free and flexible spirit of our political institutions, and offering as few opportunities as may be to fraud and oppression. Its processes are of course technical, perhaps still too technical, and they are sometimes needlessly circuitous[241]; but, as a technical hardship may usually be met by a technical remedy, substantial justice seldom fails to be attained. With some cumbrousness, our procedure has the merit of variety and flexibility; and it is our especial honour to have worked out the method of trial by jury with a completeness unrivalled elsewhere, and to have alone (for in this, as in many other respects, Americans may practically be reckoned as Englishmen) succeeded in applying it to large classes of civil causes. But when English law is regarded in its formal and scientific aspect, as a system, the opinion formed of it must be very different. It is, in fact, not so much a system as a huge mass of isolated positive rules; some laid down, with little statement of a reason, for the sake of meeting a particular case; some deduced by the judges, though in a rather occasional and fragmentary way, from principles which were at first dimly and incompletely apprehended; some, again, created by statutes which have, especially of late years, cut across these pre-existing principles and rules in an irregular and reckless way. Just as lines of railway have been driven through modern London without regard to the old arrangement of the thoroughfares, and have crossed and recrossed streets and squares, effacing parts of them till perhaps only a house or two is left standing, so Acts of Parliament, drawn up to meet the exigency of the moment, have paid no respect to the symmetry, such as it was, of the common law, and, instead of attempting to mould and reconstruct it, have laid down new positive rules which infringe upon, or almost wholly destroy, its ancient principles, by removing from their operation large and heterogeneous classes of cases. The effect of this has been to make the old principle no longer really a principle, but a positive rule in the cases not affected by the statute; and thus, as the number of enactments and positive rules increases, the value of principles declines, and the confusion grows every year worse confounded. So it comes, owing partly to the way they have been produced, and partly to the way they have been amended, that the rules of our law are an aggregate of dicta on points of detail—dicta which with difficulty can be reduced to a reasonable number of leading doctrines. For not only do the exceptions to a rule frequently outnumber the cases which it governs, but it often happens that judicial decisions, or the words of an Act, have provided for many cases which naturally fall under and suggest a general principle, but have never ventured to enunciate the principle itself, which cannot therefore be laid down as being part of the binding law. Hence the tendency of an English practitioner is by no means towards a search for principles: indeed, he becomes absolutely averse to them; and the characteristic type of excellence which the profession has delighted to honour is the so-called ‘case lawyer,’ who bears in his memory a great stock of particular decisions, from which he can, as occasions arise, select that one whose facts most nearly approach the individual case upon which he is required to argue or advise. Such a practitioner may acquire a sort of instinct which will usually keep him right, but may be unable to state the general doctrines on which the solution of a class of cases depends.

-----

Footnote 241:

This defect was removed by the Judicature Act of 1873.

-----

The strain thus imposed on the memory is such that many persons succeed in mastering only some special department of the law; and even our most eminent counsel, men of the greatest powers of mind, may be heard to confess that they do not pretend to know our law as a whole, but must rest content with knowing where to find what they want as they may happen to want it. For the same reason our text-books are, with few exceptions, not systematic expositions of law, but mere heaps of cases from which, by the aid of an index, the practitioner must try to pick out a few resembling, or, as lawyers say, ‘on all-fours with,’ that set of circumstances whose legal character he is called upon to determine. They are, therefore, unfit to be put into the hands of a beginner.

The result of all this is to make the process of learning English law very slow and somewhat distasteful. Certain persons indeed there are who, having no feeling for symmetry, are willing to pick up their knowledge by scraps and morsels, and who, so to speak, roll themselves about in cases in the hope that bits of legal knowledge will stick. But minds of finer temper, minds trained by their University studies to ask for a reason, seek out a principle, group things together under their natural relations, are disheartened by this chaotic state of matters, make slow progress in the study, find themselves required to unlearn their best mental habits, and sometimes abandon the profession in disgust. I remember having been told by a very distinguished and able member of this University[242], that when he began to read in a conveyancer’s chambers he found his previous classical and philosophical training, so far from helping him, prove a positive hindrance and stumbling-block. This was seen to be an evil so long ago as Sir William Blackstone’s time. In his introductory lecture as Vinerian Professor, delivered here in A.D. 1758, he says:—

‘We may appeal to the experience of every sensible lawyer whether
anything can be more hazardous or discouraging than the usual entrance
on the study of the law. A raw and unexperienced youth, in the most
dangerous season of life, is transplanted on a sudden into the midst
of allurements to pleasure, without any restraint or check but what
his own prudence can suggest; with no public direction in what course
to pursue his inquiries; no private assistance to remove the
distresses and difficulties which will always embarrass a beginner. In
this situation he is expected to sequester himself from the world, and
by a tedious lonely process to extract the theory of law from a mass
of undigested learning; or else, by an assiduous attendance on the
courts, to pick up theory and practice together, sufficient to qualify
him for the ordinary run of business. How little, therefore, is it to
be wondered at, when we hear of so frequent miscarriages; that so many
gentlemen of bright imaginations grow weary of so unpromising a
search, and addict themselves wholly to amusements, or other less
innocent pursuits; and that so many persons of moderate capacity
confuse themselves at first setting out, and continue ever dark and
puzzled during the remainder of their lives.

‘The evident want of some assistance in the rudiments of legal
knowledge has given birth to a practice which, if ever it had grown to
be general, must have proved of extremely pernicious consequence. I
mean the custom, by some so very warmly recommended, of dropping all
liberal education, as of no use to students in the law, and placing
them in its stead at the desk of some skilful attorney, in order to
initiate them early in all the depths of practice, and render them
more dexterous in the mechanical part of business. A lawyer thus
educated to the bar will find that he has begun at the wrong end. If
practice be the whole he is taught, practice must also be the whole he
will ever know; if he be uninstructed in the elements and first
principles upon which the rule of practice is founded, the least
variation from established precedents will totally distract and
bewilder him: _ita lex scripta est_ is the utmost his knowledge will
arrive at; he must never aspire to prove, and seldom expect to
comprehend, any arguments drawn _a priori_ from the spirit of the laws
and the natural foundations of justice[243].’

-----

Footnote 242:

Now (1901) one of the Law Lords sitting in the House of Lords.

Footnote 243:

Although it is the custom of placing a youth (untrained in theory) in
an attorney’s office to learn practice which Blackstone is here
condemning, the spirit of his concluding remarks is almost equally
applicable to the present usage of entering a conveyancer’s or
pleader’s chambers before one has gained any systematic knowledge (or
indeed any knowledge whatever) of the law.

-----

Blackstone is here founding, on the unfortunate results of the usage of his own time, an argument for making the future barrister begin with a systematic theoretical study of English law. His reasoning will be generally felt to be sound, but it does not exclude the further improvement of giving the learner some knowledge of the principles of Roman law before he addresses himself to English. I shall state some grounds for thinking that what might appear the longest way round, through Roman law, may really be the shortest way to the scientific mastery of our own.

It is clear that no knowledge of the Roman system can be a substitute for a knowledge of the English; but the difficulties which the English presents to a beginner are such as to suggest the utility of a preliminary legal training which may render it more comprehensible and less distasteful. Now, the conspicuous merit of Roman law is, that it is clear and intelligible. It is a system instead of a mere congeries of rules and dicta, a system which, although it cannot be exhausted by the labour of a powerful intellect during a long life, may be mastered in its outline and leading principles in six or eight months of properly-directed industry. A philosophical mind is attracted by its symmetry; the taste is pleased by the graceful propriety of its diction; the learner’s interest is kept awake by watching the skill and subtlety wherewith its technical rules are manipulated and kept in harmony with the dictates of equity and common sense. The number of dominant conceptions which it is necessary to acquire is so small, and these conceptions themselves so rational and, so to speak, natural, that it does not take long to obtain a general view of the whole, and discern the harmonious relation of its parts. The student finds the ethical and historical knowledge he has already acquired serviceable in this new field. He learns to regard law as a science, closely related to ethics, and to be dealt with in a philosophical spirit. And thus, when he passes on to the study of our English law, he finds himself the better able to grapple with its bulk and its want of arrangement, since he has already mastered the leading conceptions of jurisprudence in their concrete (which is, after all, their only serviceable) form, and knows how to arrange under appropriate heads the positive rules which it will be his business to remember and apply. So valuable is this experience, that I dare affirm that a youth who spends some eight months in the study of the Civil Law, and then proceeds to that of English law, will, when at the end of three years he is measured against his contemporary who has given exactly the same amount of time and pains to English law alone, prove to be not only a better jurist, but as good an English lawyer. This is the rather so, as that part of English law which the Roman law least helps to elucidate is now of much slighter importance than formerly—I mean the feudal law of land. A change has passed upon us, somewhat similar to that which Cicero saw passing at Rome. In his youth, he tells us, he like other pupils of the great _prudentes_ was required to learn by heart the contents of the Twelve Tables, whereas in his later days it was the Praetor’s edict that formed the basis of legal training. So Coke upon Littleton, which thirty years ago was held forth as a sort of Bible to the unfledged lawyer, is now seldom in his hands; his time is given rather to commercial law and to the doctrine of trusts and powers, and the principles governing incorporated companies and the relations of directors to intending investors and to shareholders—subjects to which the leading principles of the Roman law are more capable of being profitably applied.

It is not, however, merely as an introduction to his professional studies that the English lawyer will find the study of Roman law profitable: if rightly used it will be a guide and a help throughout his whole career. More than anything else, it will deliver him from the tendency to deal with law in a desultory method and an empirical spirit, by displaying to him fixed and general principles underlying the multitude of details. It will do for him what the knowledge of some foreign language does for the grammarian and the logician, in the way of freeing him from that bondage of words to which most men are all their lives subject. Setting him to compare the terms and conceptions of another law with those of his own, it will enable him to criticize the latter from an independent point of view, and so deliver him from the danger, common in all professions and to all systems, of mistaking the accidental for the essential, of exalting mere technical rules and phrases into necessary and permanent distinctions. Further, it may do much to supply, from its choice and abundant stores, the defects in English legal terminology. We are especially ill provided with terms fitted to convey the main conceptions of universal jurisprudence; and we find the want a serious impediment, not only to legal exposition and the conduct of legal argument, but also, as has been remarked by a distinguished jurist, now one of the ornaments of this University[244], in the work of practical legislation. The terminology of the Romans was exact as well as copious; and it has been greatly amplified and improved by the labours of modern civilians. As it is, we often draw upon the Roman vocabulary, but what we borrow we are apt to use loosely, and in a sense different from that of the old Romans or of their modern commentators; whence further confusion.

-----

Footnote 244:

Sir H. S. Maine.

-----

There are two capacities or mental habits in which the distinctive excellence of a legal intellect chiefly consists—the power of applying general principles to concrete cases, and the power of enunciating a legal proposition with clearness and precision. Towards the formation of both of these the writings of the Roman jurists supply more aid than do those of their modern English rivals. The conspicuous merit of the Roman lawyer was his command of principles, and the skill with which he manipulated the rules of an originally very technical system, so as, without any loss of consistency or ‘elegance’ to avoid the inconveniences which an adherence to technical strictness must often produce. As Savigny puts it, ‘In our science, all results depend on the possession of leading principles, and it is precisely upon this possession that the greatness of the Roman jurists is based. The conceptions and maxims of their science appear to them not as if created by their own will; they are actual beings, with whose existence and genealogy they have become acquainted from long and familiar intercourse. Hence their whole course of proceeding has a certainty which is found nowhere else out of mathematics, and it is no exaggeration to say that they calculate with their ideas. This method is nowise the exclusive property of one or a few great authors: rather is it the common inheritance of all; and although the power of applying it is divided among them in very unequal measure, still the method itself is in all of them the same.... If they have a case to decide upon, they set out from the most vivid perception of it, and we see before our eyes the origin and development of the whole affair in all its phases. It is as if this particular case was the starting-point whence the whole science was to be explored. Hence with them theory and practice are really not distinct; their theory is so thoroughly worked out as to be fit for immediate application, and their practice is uniformly ennobled by scientific treatment. In every principle they see an instance of its application; in every case, the rule whereby it is determined: and in the facility with which they pass from the universal to the particular, and the particular to the universal, their mastery is incontestable[245].’

-----

Footnote 245:

_Vom Beruf unserer Zeit für die Gesetzgebung und Rechtswissenschaft_,
c. 4.

-----