Law in bulk and complexity, which we call the Canon Law. In the canon law there may seem to be an analogue to the sacred law of Islam. But the resemblances are fewer than the differences. The canon law never had any chance of ousting the civil law, which had already entered on a period of brilliant development and potent influence at the time when the decrees of earlier Councils and Popes were beginning to be formed into a systematic digest of rules; and temporal rulers were generally able to hold their own against Popes and archbishops. Moreover the canon law, being partly based on or modelled after the Roman civil law, escaped some of the faults that might have crept into it had it been erected on a purely theological foundation. The Church was already so secularized that its law was largely secular in spirit, and ecclesiastical jurists were at least as much jurists as they were churchmen. The question propounded in the twelfth century, whether an archdeacon could obtain salvation, shows that the churchman who betook himself to legal business was deemed to be quitting the sphere of piety. Thus law, canon as well as civil law, remained law, and religion remained religion. The canon law is the law of the Church as an organized and property-holding society or group of societies. It is the law for dealing with spiritual offences. It is the law which regulates certain civil relations which the Church claims to deal with because they have a religious side. But there is no general absorption of the civil by the ecclesiastical, no general lowering of the spiritual to the level of the positive, the external, and the ceremonial. In the fifteenth and sixteenth centuries the New Learning and the great ecclesiastical schism removed the danger, if danger there ever was, that there should descend upon Christianity that glacial period which has so long held Islam in its gripe.

XIV

METHODS OF LAW-MAKING IN ROME AND IN ENGLAND

INTRODUCTORY.

THE relations borne by the growth and improvement of the law of a country to that of the constitutional development of that country as a State are instructive in many aspects-instructive where the lines of progress run parallel to one another, instructive also where they diverge. I propose in the following pages to consider them as they concern the organs and the methods of legislation at Rome and in England. The political side of this subject is a very large one, indeed too large to be discussed here, for it would involve a running commentary upon the general history of these two States. I will only remark that the inquiry would show us, among other things, the fact that the progress of Rome from a republic, half oligarchic, half democratic, to a despotism, did not prevent the phenomena which mark. the evolution of its legislation from bearing many resemblances to the evolution of legislation in England, where progress has been exactly the reverse, viz. from a strong (though indeed not absolute) monarchy to what is virtually a republic half democratic, half plutocratic. The present inquiry must be confined to the legal side of the matter, viz. to the Organs and the Methods of Legislation regarded not so much as the results of poli

tical causes, but rather as the sources whence law springs and the forces whereby it is moulded.

The working of these Organs and Methods may be studied, and their excellence tested, with regard to both the aspects of law itself, its Substance and its Form. The merit of a system of Law in point of Substance is that it be righteous and reasonable, satisfying the moral sentiments of mankind, giving due scope to their activity, securing public order, and facilitating social progress. In point of Form, the merit of Law consists in brevity, simplicity, intelligibility, and certainty, so that its provisions may be quickly found, easily comprehended, and promptly applied. Both sets of merits, those of Substance and those of Form, will depend partly on the nature of the persons or bodies from whom the Law proceeds, that is the Organs of Legislation, partly on the Methods employed by those persons or bodies. But the merits of Substance open up a field of inquiry so wide that it will be better to direct our present criticism of Organs and Methods chiefly to those excellences or defects of the law which belong to its form. I propose to consider these as they worked in Rome, and have worked down to and in our own time in England, assuming the broad outlines of the legal history of both States to be already known to the reader, and dwelling on those points in which a comparison of Rome and England seems most likely to be profitable.

I. LAW-MAKING AUTHORITIES IN GENERAL.

First let us see what, speaking generally, are the authorities in a community that make the Law, and How -that is to say, by what modes or through what organs, they make it.

Broadly speaking, there are in every community two authorities which can make Law: the State, i.e. the ruling and directing power, whatever it may be, in which the government of the Community resides, and the Peo

ple, that is, the whole body of the community, regarded not as organized in a State, but as being merely so many persons who have commercial and social relations with one another. There is, to be sure, a school of juridical writers which does not admit that the people do or can thus make Law, insisting that Custom is not Law till the State has in some way expressly recognized it as such. But this view springs from a theory so incompatible with the facts in their natural sense, that a false and unreal colour must be put upon those facts in order to make them fall in with it. It is unnecessary to pursue a question which is apt to become merely a verbal one. Let it suffice to say that Law cannot be always and everywhere the creation of the State, because instances can be adduced where Law existed in a country before there was any State; and because the ancient doctrine, both of the Romans and of our own forefathers a doctrine never, till recently, disputed-held the contrary. A great Roman jurist says, with that practical directness which characterizes his class, 'Those rules, which the people without any writing has approved, bind all persons, for what difference does it make whether the people declare their Will by their votes or by things and acts 1?' This is the universal view of the Romans, and of those peoples among whom the Roman law, in its modern forms, still prevails. And such has been also the theory of the English law from the earliest times.

Now the State has two instruments or organs by which it may legislate. One is the ruling Person or Body, in whom the constitution expressly vests legislative power. The other is the official (or officials), whether purely judicial, or partly judicial and partly executive, to whom the administration of the law is committed, and whom we call the Magistrate. This distinction does not refer to the instances in which legislative authority is, by an act of the Governing Power, 1 Julian in Dig. i. 3. 32.

specially delegated to some magisterial person or body. Those instances are really to be deemed cases of mediate or indirect legislation by the supreme Government (like the power given by statute to a railway company to make by-laws). The position of the Magistrate is different, because judicial administration, and not legislation in the proper sense, is the work he has been set to do.

Similarly the People have two modes of making Law. In the one they act directly by observing certain usages till these grow so constant, definite, and certain that everybody counts upon them, assumes their existence, and feels sure that they will be recognized and enforced. In the other they act indirectly through persons who have devoted themselves to legal study, and who set forth, either in writing or, in earlier times, by oral discourse, certain doctrines or rules which the community accepts on the authority of these specially qualified students and teachers. Such men have not necessarily either any public position or any direct commission from the State. Their views may rest on nothing but their own reputation for skill and learning. They do not purport to make law, but only to state what the law is, and to explain it; but they represent the finer and more highly trained intellect of the community at work upon legal subjects, just as its common and everyday understanding, moved by its sense of practical convenience, is at work in building up usages. So the maxims and rules these experts produce come to be, in course of time, recognized as being true law, that is to say, as binding on all citizens, and applicable to the decision of disputed questions.

Taking then these four Organs or Sources, we find that one Source-the People, as makers of Customary Law-is so vague and indeterminate that one can say little about it as an Organ, though the process by which Custom makes its way and is felt to be binding is a curious process, well deserving examination. Two remarks