McIlwain on Ancient Constitutionalism
Source: Charles Howard McIlwain, Constitutionalism: Ancient and Modern (Indianapolis: Liberty Fund, 2008). Chapter: III: The Constitutionalism of Rome and Its Influence.
Copyright: First published in 1940 by Cornell University Press. Material from the Revised Edition copyright 1947 by Cornell University, copyright renewed 1975; it has been included by permission of the original publisher, Cornell University Press.
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The oftener I survey the whole history of constitutionalism the more I am impressed with the significance and importance of the republican constitution of Rome in that development. A generation or two ago it was the fashion to trace all our constitutional liberties back to the institutions of the Germanic tribes as described by Tacitus. Rome had contributed little or nothing to medieval or modern institutions or ideas in this field beyond the absolutist maxim of the Empire that “what has pleased the prince has the force of an enactment of the people.” Modern absolutism was a return to Roman autocracy; liberty was solely a retention in the face of it of the freedom of the primitive Germanic peoples. It was sometimes overlooked that Tacitus himself, when he contrasted the virtues of primitive Germany with the degeneracy of Rome, had written with Roman imperial institutions in mind, not those of the Republic. There was undoubted truth in this Germanic interpretation, but its exaggeration had been undermined by more careful historical research long before the recent deplorable exhibitions of tribalism in Germany. Even before these startling modern developments some of us had begun to question some of the conclusions of the German oracle, Otto von Gierke, in his Genossenschaftsrecht. The reaction of the Germanists against the more extreme defenders of Pandektenrecht such as Bernhard Windscheid, and the substitution of a more Germanic code of law in place of the original draft at the opening of this century are easy enough to understand and may have been both necessary and beneficial; but the recent appalling effects of tribal particularism have served to heighten the suspicion held by some of us a good while before, that after all the impressive apparatus of Gierke’s Genossenschaftsrecht sometimes merely conceals the weakness of some of its principal historical conclusions instead of really strengthening them. The too ready acceptance of these conclusions by F. W. Maitland, the greatest of all our modern historians of English medieval institutions, unfortunately created a vogue in England and America for these views which a careful examination of them seems hardly to justify.
In returning to our subject proper, the institutions of Rome under the Republic, I shall try to avoid as far as possible the thorny question of origins. Cicero is the first expositor of these institutions whose works are known in any great detail, and Cicero was at once a practicing lawyer and a pupil and paraphraser of Panaetius. Is it the Roman lawyer then who is speaking, or the Hellenistic Stoic, when Cicero sets forth in his De Re Publica and his De Legibus the fundamental relations of the state to law? It is a question I am not competent to answer nor even to try to answer. I shall confine myself therefore to the general principles of the Roman constitution as it actually was in the last century or two of the Republic, or rather so far as we can safely reconstruct it from the surviving contemporary materials. Even in the realm of the actual, it may seem strange to some that I should pay such slight attention to those checks and balances so admired by Polybius and Machiavelli and so despised by Mommsen. My excuse is that these balances, while possibly the most original of Rome’s permanent contributions to constitutionalism, are very far indeed from being the most important then, or the most significant now.
We cannot hope to bridge the gap between the constitutionalism of Aristotle and that of Cicero, but even the most superficial comparison of the two will show that a gap is there, and a very wide one. As Dr. Carlyle says:
There is no change in political theory so startling in its completeness as the change from the theory of Aristotle to the later philosophical view represented by Cicero and Seneca. . . . We have ventured to suggest that the dividing-line between the ancient and the modern political theory must be sought, if anywhere, in the period between Aristotle and Cicero.1
What is true of political is usually true also of constitutional theory; the two are often nearly indistinguishable, and never more nearly so than in Rome. We should in all probability have to look back as far as republican Rome for the beginnings of our “modern” theory, constitutional as well as political; and we could probably look back little if any further than republican Rome with any assurance.
For the distinctive general principles of Roman constitutionalism under the later Republic—the general principles, the “spirit,” rather than the minute details, the thing most important for us here—I have never found any modern guide more suggestive or more penetrating than Rudolf von Ihering’s monumental Geist des römischen Rechts. The author’s universalism—a universalism which implies an essential individualism—is shown in his assertion that peoples formed by a mingling of races are usually distinguished by their persistent energy, a marked characteristic of the Romans and in modern times of the English, who most resemble them.
But the Roman characteristic of greatest significance for constitutional history is reflected in the fact that we have to wait so long to find in any legal writer the plain statement that a ruler’s will actually is law. It is clear, say the authors of Justinian’s Institutes, quoting Ulpian, that a command of the emperor in due form is a lex: “Quodcumque igitur imperator per epistulam constituit vel cognoscens decrevit, vel edicto praecepit, legem esse constat.” All these expressions of the emperor’s will actually are leges, and apparently no predecessor earlier than Ulpian had ever ventured to say so much. The most Gaius will say, even in the second century after Christ, is that it has never been doubted that the will of the Emperor duly expressed should receive the obedience owing to a lex. It is not itself a lex. Gaius does not even quite say, as the authors of Justinian’s Institutes do, though I think he does mean to imply, that it has the full force of a lex (legis habet vigorem); his express words are that there is no doubt that any imperial constitution, like a senatus consultum, should have the place of a lex (legis vicem optineat). And for this he gives one reason and one alone—“because the Emperor himself receives his imperium by virtue of a lex (per legum).”2
It is clear that the key to the source of all political authority at Rome is the definition of a lex. A lex, Gaius says in the second century, “is what the people orders and has established.” Some four centuries later Justinian’s Institutes define it as “what the Roman people was accustomed to establish when initiated by a senatorial magistrate such as a consul.” In the exhaustive list of the various kinds of Roman legal enactment which Gaius gives—he has nothing whatever to say concerning the authority of unwritten law or custom—lex stands first, the enactment of the whole people; while the authority of every other form of Roman legislation invariably depends upon its relation to lex. Thus the patricians, we are told, had refused to be bound by enactments made by the plebs alone till these were “equated” with leges by a lex passed by the whole populus itself. Decrees of the Senate were never leges, but in time came to be accepted in place of lex (legis vicem optinet); though Gaius hints at existing doubts of their validity, which probably resulted from the nonexistence for decrees of the Senate of any particular lex similar to the Lex Hortensia by which plebiscites had been made equivalent to leges. Notwithstanding such doubts, as the Institutes of Justinian somewhat vaguely say, in the course of time “it seemed just (aequum) that the Senate should be consulted” in place of the populus, because the latter had become too great in number to meet for purposes of legislation. It might be said that observance of the Senate’s decrees always depended on a “convention of the constitution” rather than a law. As Cicero put it in his De Legibus, “potestas in populo, auctoritas in senatu.”3 It was the very necessity of the case, as Pomponius says in an extract preserved in Justinian’s Digest, that imposed on the Senate the care of the Republic.4 The distinction implied by the letters SPQR, Senatus Populusque Romanus, on the Roman standards really meant something. The constitutional difference and the interrelation of senate and populus were roughly analogous to those existing between a modern English “government” and an English parliament.
Constitutions of the Emperor also, like decrees of the Senate, had for Gaius the effect of lex without themselves becoming leges; but, on the other hand, by the second century after Christ none could possibly doubt the full legal equivalence of an imperial constitution with a lex, as he might of a senatus consultum; for the Emperor by a definite lex had received his imperium—nothing less than the whole of (omne) the people’s imperium and potestas, as Justinian’s Institutes later phrase it—and more than one of these regal laws were in existence.5
Whatever the fact, of the theory of the Roman constitution we can have no doubt: the people, and the people alone, are the source of all law. As Rehm says, “The assembly of the people is the state; not merely the organ of the populus, but the populus itself.”6 SPQR means senate and populus, not senate and any assembly even roughly representing the people.
For an understanding of the essential spirit of Roman constitutionalism, above all other things, a consideration of the nature of lex is necessary.
“It may be said that the Romans have fixed for all time the categories of juristic thought,” says one of the ablest modern historians of the Roman law;7 and undoubtedly one of their greatest permanent contributions to constitutionalism was the distinction they made, more clearly than it had been made before, or was to be made for long afterward, between the jus publicum and the jus privatum—a distinction that lies to this day behind the whole history of our legal safeguards of the rights of the individual against encroachment of government. But the true nature of this important distinction is likely to be lost if we forget the close relation that also existed between the private law of Rome and the public. Both were jus, and the same spirit animated them. Public law, as the authors of Justinian’s Institutes say, is only that part of jus “quod ad statum rei Romanae spectat”; private law is “that which pertains to the utility of individuals.” Their essence is the same; their difference lies in their incidence rather than their nature. As Ihering says in a remarkable passage:8 The state, as a bearer of rights, is the whole of the citizens, the civitas; it is no abstraction apart from the people, and therefore these rights inhere in the people themselves, and what is more, in each of them individually. Public and private rights are not distinguishable in having what the Germans call “subjects” different from each other. The “subject” is always exactly the same for both, the natural person. The sole difference between them lies in the fact that private rights affect private individuals exclusively, while all the individual citizens alike participate in the public. A concrete proof of the correctness of this contention is to be found in the Roman actio popularis, which was open to any private citizen in case of an infringement of the common rights of all.
And what was thus true of rights was equally true of duties, as appears in the fact that a Roman citizen who violated a treaty with another nation was surrendered to the other nation “because he had broken an obligation which rested on him personally.”9
It is then an inversion of the true historical order to infer, as some have done, that the principles of Roman private law were merely those drawn from the public. The general principles were the same in both, but their earliest application is to be seen far more clearly in relations between individual citizens than in the field of constitutional law proper. The primary notion in each is the independence of the individual, and, as Ihering says again, it was only after a long and bitter struggle that the dominance of the state over him was finally established.
The most effective safeguard of the rights of individual against individual was ultimately found in the guarantee of the people to protect these rights. The observance of the terms of a will, for example, was secured by “registering” it, as we should say, in the comitia calata; and similar instances of private transactions thus publicly guaranteed are numerous in the early law, such as mancipatio, nexum, and the like. The whole people became “responsible” for the maintenance of the individual rights thus created by private act or agreement. These were very concrete rights in the beginning, and the later refined notion that the state is the protector of right in the abstract is the outcome of a long development. In legal history, not only in Rome but elsewhere, the truth of Sir Henry Maine’s famous generalization is obvious. In the beginning the principles of the law are “gradually secreted in the interstices of procedure,”10 and the development of that procedure itself is tentative, from one particular remedy to another, as needs gradually require. The true historical order has been the converse of the logical: principles have developed slowly as a rationalization of existing and only partial remedies; remedies have not been means devised to enforce principles antecedent.
Early legal development is everywhere the gradual merging of damna absque injuria—wrongs without a legal remedy—in a growing list of actionable injuries; and in the beginning the damna were far more numerous than the injuriae. As Maitland puts it for England in his incomparable way, “writs, not rights,” must be the subject of any study of the early history of law.
It is only from such a study that we can get a notion of the true content of the word lex in Roman constitutional development, and I should like to add to lex one other word of almost equal significance, not only for Roman constitutional ideas themselves, but for the later influence of these ideas as well—the word sponsio.
Lex in its fully developed constitutional sense is a form of obligation applicable to the people as a whole, but if one were to look through the extracts preserved in the Digest for instances of the use of the word, he would be struck by the many cases in which it clearly refers merely to obligations subsisting between individual citizens. I can give but few of the many instances. Here is one extract from the Responses of Scaevola:
A controversy has arisen between an heir at law and an heir under a will and has been terminated after an arrangement by a definite agreement (certa lege). I ask which one creditors can sue.11
Another, from the Quaestiones of Paulus, is as follows:
It has been asked whether any action lies if a son has been given you by adoption with this proviso (hac lege), that after say three years you should give him to me by adoption. And Labeo thought there was no action.12
The last of these dry quotations—and it must be the last—is from Ulpian’s commentary on the Edict:
If in the course of an action of wardship it is agreed that interest shall be paid beyond the legal rate, this shall have no effect, for this would ground an action on the agreement; whereas those terms are essential which determine the conditions of the contract (quae legem contractui dant); namely, those entered into when it was made.13
Gaius uses lex in the same sense when he speaks of a lease of lands with this stipulation (ea lege), that the heirs of the lessee shall remain in possession,14 and refers to the hiring of a band of gladiators with a condition (ea lege) respecting those who shall be killed or injured.15 A lex was a contract between private individuals. But, as we have seen, lex for Gaius is also “what the people orders and has established.”
These facts, it seems to me, fully warrant Ihering’s generalization when, for example, he says that the effect of a law for the citizen is that of a contract to which he has agreed, and the violation of a law is the breach of an obligation which he has assumed. “The lex publica is a convention of all, and inversely a private convention is a law for the contracting parties.” The law is a form of obligation binding the entire people; and, it might be added, binding each of them, because each is assumed to have assented to its enactment. Papinian, usually reckoned the greatest of Roman jurists, put this all in a single sentence: “Lex is a common engagement of the Republic (communis rei publicae sponsio).”16 Now this sponsio was the essence of the old verbal contract at Rome, and Gaius tells us that its formal question, Dari spondes? and its answer, Spondeo, could be used by none but Roman citizens; while other formulae, such as Dabis? Dabo, might be used by other persons. Corresponding to these private sponsiones were the rogationes in which the whole people were asked if they were willing to assent to proposed legislation and thus make it binding law. And it was this consent alone that gave legal force to the measure proposed. Thus laws were spoken of as leges rogatae. A phrase of the Lex Falcidia, which we should naturally translate “after the enactment of this law,” actually reads “post hanc legem rogatam.”17 Enactment is thus termed “rogation,” because the rogation contains the exact provision which the people turn into law when they accept it by their vote. But rogatio, like sponsio, had its private-law meaning too. Rogo, Gaius tells us, was one of the formal words by which a trust could be created in a will,18 and other instances are numerous.
When Papinian speaks thus of a public law as a common engagement (sponsio) of the Republic, a common responsibility which the whole people have assumed, one cannot but believe that he must have been fully conscious of the political implications which the close parallel between the public and the private law inevitably brings to mind. Perhaps it should not be surprising that he met a violent death at the hands of the Emperor Caracalla.
But no account of Roman constitutionalism could be adequate which ignored the tendency toward autocracy in Roman institutions apparent even in the republican period. What impresses one here is the remarkable balancing of this tendency with the spirit of individual liberty which I have hitherto been trying to illustrate. Such a balancing is exemplified in the Roman distinction between the older jus strictum and the growing jus honorarium, and the remarkable fact that magisterial authority, the magistrates’ imperium, becomes the chief medium of the liberalization of the law. Lawyers as a class are usually thought of as reactionary defenders of musty precedents, and sometimes they are. But I submit that there are few parallels in all intellectual history to the stupendous liberalization of Roman social institutions brought about by the generations of Roman jurists and magistrates, most of whom are unknown even by name; and this work was done largely by virtue of an authority, an imperium, which we must call in some sense arbitrary.
Thus a transfer of lands in strict law could be made only by a procedure so formal and intricate that the slightest slip would invalidate it, defeating the intentions of parties and what we should consider the ends of justice. No magistrate had authority to change this law, and till a comparatively late period it remained unchanged; but by authority of his imperium the magistrate could grant possession to the party “equitably” though not legally entitled to ownership, and could protect his possession until the law of prescription merged this possession in a full legal title. In this way the whole of property law was transformed and liberalized, and formality gave way to equitable considerations. It was nothing less than a gradual and silent social revolution, if we consider that a similar transformation was going on in every branch of law—the law of marriage, of family relations, of testamentary succession, of contracts, and, in fact, of all human relations.
There is probably no other social revolution in recorded history so important, so complete, so continuous over so long a period, as this evolution traceable step-by-step in the sources of Roman private law. We find institutions of an age long bygone still preserved in a law that is binding, but alongside it an actual administration enforcing principles often in many ways more advanced than those embodied in our own modern codes. Strict law tends to become a fiction, equity has become the important fact. The modern sociological school of jurists might, if they cared to look for it, find the strongest support for their theories in this remarkable evolution of Roman law. It is an interesting fact that Ihering, the greatest of early modern sociological jurists, left his Geist des römischen Rechts incomplete to pass on to the writing of his Zweck im Recht. The former naturally led him to the latter, and it is on the former rather than the latter that his reputation is likely to rest. It was the imperium no doubt that empowered the Roman magistrate to bring about such changes as these, but what we need to know is both how and why this imperium was used to strike off the shackles of the old formal law instead of strengthening them.
That subject is far too vast to be treated in a single lecture, but it suggests some parallels which may throw a little light on the general nature of Roman constitutional development. The parallel between Rome, on the one hand, and England and the British Empire on the other, has often been referred to; Ihering has noticed it, and Lord Bryce has developed it at some length in papers included in his two volumes of Studies in History and Jurisprudence. The parallel is very striking between the development of Rome under the Empire and that of Britain; particularly in the contrast noticeable in both between law and convention, and the resulting growth of what might be called “political fictions.” But these parallels are usually drawn between two constitutional developments which appear very late in the national history both of Rome and of England. What we need in both cases is a study and a comparison of the earlier national characteristics which lie behind and may serve to explain their later striking similarities. That is a subject of much greater difficulty, and it has never yet been examined with the care it deserves and ought to receive. For I am convinced that the most fundamental likeness of Roman and British constitutionalism is a likeness resulting from a similarity of conditions which made English law a “common law,” and made Roman law the law of the Italian peninsula. Before we compare Rome of the third or fourth century of the Christian era with Britain of the nineteenth, we ought to look for the similarities between republican Rome and England in the period of corresponding growth during the three centuries following the Norman Conquest. It was the constitutional character of those relatively early periods of development in the two rival systems of common law which still dominates the Western world; for in them were shaped those fundamental principles of both private and public law which constitute the true spirit of Roman and of English constitutionalism. The expansion of English law in southern Britain was a gradual process of incorporation of varied local customs in a system which in time thus became general and “common.” The common law of England is an English jus gentium compounded of many pieces of local custom. In like fashion the jus gentium of Rome consisted of the legal principles “common” to the Italian states which Rome’s expansion merged in the Roman judicial system. Among the unsung heroes of English constitutionalism are the great justiciars of Henry II, such as Richard de Lucy and Ranulf Glanvill, who were doing for English law what, centuries before, the long line of obscure but important praetores peregrini had done for the Roman.
The expansion of both the Roman and the English legal system called for great and fundamental changes at a time in the history of each when the law was still plastic but the process of law making was yet undeveloped. Thus the legal changes in twelfth- and thirteenth-century England and in the later centuries of the Roman Republic, far-reaching as both were, came to be the work of jurists rather than of legislators, and the mode of their expansion of the law came to be extension by way of juristic interpretation rather than addition through legislative action.
To a degree that seems unexampled for the time when it occurred, both Roman and English law thus became what we should term “judge made” law, and to the end both systems exhibited the familiar characteristics of such law. One of the most marked of these characteristics was the great abundance of legal fictions which we find in both systems. Magistrates could not change the law, but they could stretch it to cover new circumstances by an untrue assumption of fact which no one was permitted to disprove. Such expedients tend to disappear, because less needed, when legal change becomes consciously legislative, as it finally did become in both Rome and England; and these archaic fictions have been the scorn of most modern legal reformers, notably Jeremy Bentham. But Bentham, like many of his fellows since his day, was much more noteworthy for his practical service in law reform than for his historical sense. When an English court, in order to extend its jurisdiction beyond the limits of the ancient law, took notice of a bond executed “at Bordeaux in Islington in the County of Middlesex,” or of the seizure of a vessel “on the high seas, to wit in Eastcheap in the City of London,” this was a sign, not of the blindness of the courts, but of the backwardness of the legislature.
In still earlier periods, when legislative action was infrequent or even unthought of, these judicial fictions were the usual means by which judges tried to keep the law abreast of the times. The early history of law, both Roman and English, is full of them. Instances, though numerous in private law, are by no means confined to it. Where but in Rome during ancient times do we find a political fiction comparable to the Principate, “an absolute monarchy disguised by the forms of a commonwealth,” as Gibbon calls it? Where but in England during modern times can we find an indigenous constitutional development in which the titular ruler is a king, the legal sovereign an assembly, and the ultimate political power a people? The Principate and the modern “limited monarchy” are alike fictions, and are the result of an agelong habit of thinking in fictions. The other great political fiction of the same class that comes to mind is the Holy Roman Empire; which, as Voltaire said, was not holy, not Roman, and not an empire. It was, however, much more Roman than holy, and its truly fictional character was purely Roman. And who but the Romans among the ancients would have “consulted the Senate” when the whole sovereignty lay in the Comitia Centuriata? Who but the English today would go on calling their court of final appeal the “House of Lords”? Or where except in England, or in a country with an English tradition, could one call the act of a king “unconstitutional” if he chose to exercise his undoubted legal discretion in withholding assent to a bill passed by both houses of parliament?
The constitutional or political habit at Rome which made possible the Principate seems to have been well-nigh unique in its time. There is much in the earlier history of Rome, institutional and intellectual, to prepare the way for it, but outside Rome apparently little or nothing. One cannot help wondering what Aristotle would have thought of the Roman Principate and under what form of government he would have classified it. Even in the most empirical and most practical parts of Aristotle’s Politics there is nothing like the permanent antithesis of law and fact characteristic of the Roman Principate, or of the modern “limited” monarchy in which the king “reigns but does not rule.” In Rome as in Greece there were revolutions, but in Rome a formal continuity was preserved, notwithstanding fundamental changes, that tended to disguise under older forms innovations which in Greece would have been open and avowed. It is interesting to see how much more frankly the new fact of the monarchy of the Caesars was recognized in the Greek provinces of Rome than in the West, and Ihering notes for an earlier period how often Greek writers on Roman history—such as Polybius, Dionysius of Halicarnassus, or Plutarch—consider as violations of law acts which to the Roman annalists are blamable but entirely within the law. The mos majorum forbade many things to a Roman for which there was no legal penalty. Convention, like fiction, played a large part in the development of Roman constitutionalism.
It is this general principle of continuity which helps to make clear the apparent paradox of the later Roman Empire, the retention by a despot like Justinian of writings alive with the spirit of constitutionalism. Few writings in the world’s history have had the decisive influence of these lawbooks of Justinian. So much would probably be admitted on all hands, but with regard to the question whether on the whole this influence has been good or bad there is not the same unanimity, and to that question we must now turn.
From what has gone before it is evident that the first of my conclusions must be that the true essence of Roman constitutionalism does not lie in those late statements of absolutism to which so much currency has since been given, such as the maxim, Quod principi placuit legis vigorem habet, or Ulpian’s assertion, Princeps legibus solutus est.19 It lies in the older, deeper principle that the populus, and none but the whole populus, can be the ultimate source of legal authority. The fundamental doctrine underlying the Roman state, its true guiding spirit, is constitutionalism, not absolutism—a constitutionalism that Justinian’s commissioners, even in the sixth century, could not delete from the legal sources, notwithstanding the Emperor’s order to bring these sources up to date by addition, elimination, or change.
A second proposition may or may not prove to be more acceptable than this first: Before the Italian Renaissance, at least, the influence of Roman political institutions and ideas upon those of the developing states of western Europe was exercised through the legal compilations of Justinian more than through any other medium, even such a one as the history or general literature of Rome.
A third thesis will be recognized at once as more debatable, but I think it is defensible: The really decisive influence of Rome on later European politics came, not after the Italian Renaissance in the tendency toward absolutism, but during the Middle Ages in the reinforcement of constitutionalism.
If we confine ourselves strictly to matters legal and political, or at least to matters legal, the so-called Renaissance of the Twelfth Century appears more decisive in its ultimate influence than that later development to which we usually attach the word “Renaissance” par excellence.
In a brilliant lecture,20 F. W. Maitland once pointed out the extent of the attack made upon the indigenous common law of England by the revived Roman law of the sixteenth century, and he might well have continued his study into the next century; but he recognized clearly that for England this Roman attack was an utter failure. English law was too “tough”; unlike the native law of Germany, it was already immune to foreign influence; it had been “inoculated” in the medieval period, and it was defended in the crisis by such staunch medievalists as Sir Edward Coke. Maitland attributes the persistence of the English common law very largely to the influence of the inns of court, and in this no doubt he is right; but the inns themselves were the result of an earlier development, and to me the really critical and decisive period in the competition of the native and the Roman law in England seems to come earlier, long before these societies of lawyers were founded, in the development of a common legal administrative system such as always results quickly in some kind of “common law.” The common law that survived this belated attack of Romanism in the sixteenth century was of course a native English law, but it survived not because it was English but because it was “common”; or rather, because it had become “common,” and that at a date relatively very early.
There was no mysterious quality in English custom, out of which our common law was made, to distinguish it from similar custom elsewhere; it had no “manifest destiny” to become as it did the unique rival of Rome in the legal systems of the later Western world. Its ultimate victory over Romanism was not the result of any inherent superiority, Wycliffe and Sir John Fortescue to the contrary notwithstanding. That victory was won by the end of the thirteenth century, and the issue was really determined in the twelfth. If Irnerius had taught, or Azo had written, a century before he did, or if a Henry III instead of a Henry II had followed Stephen on the throne of England, we might well be using the Digest of Justinian as a text today in our American law schools. It was not the merits of English custom, but the uniform writs and the itinerant justices of Henry II, that made this custom the “law of the land.” And if those English justices of the twelfth century had been as fully versed in the law of Rome as the German judges were in the fifteenth, an English “reception” of Roman law in the thirteenth century seems no more startling or unlikely as a consequence than the later German one.
Law, however, is one thing, jurisprudence quite another. Law is the material of jurisprudence, jurisprudence the rationalization of law. The law may come from one source, the jurisprudence from another. In the early sixteenth century the English jurist Christopher Saint-German divided the law of England, or more properly her jurisprudence, into “the law of reason primary and the law of reason secondary.”21
In this division he was no doubt influenced by St. Thomas’s distinction between the ultimate principles of the universal and unchangeable law of nature, on the one hand, and, on the other, the specific deductions that men may make from these general principles. Such secondary deductions concerning the law of property—and the law of property then included probably four-fifths of all law—when actually found among all nations, Saint-German calls “the law of reason secondary general, for the law of property is generally kept in all countries”; whereas
The law of reason secondary particular is the law that is derived of divers customs general and particular, and of divers maxims and statutes ordained in this realm. And it is called the law of reason secondary particular, because the reason in that case is derived of such a law that is only holden for law in this realm, and in none other realm.
This is little more than an extension of the statement of Gaius: “All peoples who are ruled by laws and customs employ a law partly peculiar to themselves, partly common to all mankind.”22 Saint-German’s “law of reason secondary general” is in fact the jus gentium of Gaius.
In the earlier formative period of the English common law we do undoubtedly find not only pure English custom but a rationalization of it, a jurisprudence which might be called native, an English “law of reason secondary particular.” But as Saint-German clearly implies, these “particular” deductions are and must be only a limited application of the universally accepted principles of the “law of reason secondary general.” To put it in more familiar language, a given country may have its own particular laws and even its particular jurisprudence, but this jurisprudence cannot but be consonant with a jurisprudence that is general and universal.
Yet whatever a nation’s peculiar laws may be, few, I think, could doubt the truth of the statement of Édouard Cuq, quoted above, that “the Romans have fixed for all time the categories of juristic thought.” The “law of reason secondary general” of England, as of every other western European country, was a law, or rather a rationalization of law, permeated by the juridical conceptions of Rome.
In the formation of our common law these Roman conceptions have therefore, as it seems to me, a place no less significant than the English custom they served to rationalize. They came to England too late, no doubt, to replace the English customary law itself, but they did come in time to have a large part in the orderly arrangement and development of that law and in the “law of reason secondary particular” derived from it.
The failure always to distinguish thus between matter and form may be the explanation of the wide difference in the estimates modern legal historians give of the extent of the Roman element in English law. Sir Henry Maine asserted that Bracton had palmed off as English a law of which a full third was Roman; but according to Maitland “a thirtieth” would have been nearer the mark.23 Any attempt to give a quantitative ratio of two things as different as the matter and the form of law is likely to be inconclusive.
In this long discussion of law it might seem that we had lost sight of the constitution. But in the Middle Ages the connection between private and public law was far closer than it is now; and in early English, as in early Roman institutions, we must look for much of the spirit of the constitution in the developing principles of what we now think of as only a single branch of private law, the law of property. For the medieval law of property was also the law of franchises or “liberties,” of personal status, of public office, and of much more besides. For example, even so constitutional a thing as the king’s prerogative, when it became the subject of judicial discussion, was treated in the courts under the same general rules as the proprietary right of any subject, and this almost to the very eve of what we call the modern period. In France of the thirteenth century, according to Beaumanoir, the king has the sovereignty over his kingdom, but so, he says, has every individual baron over his barony.24
In conclusion therefore I shall add two more heretical generalizations to the ones I have hitherto been trying to defend and illustrate. The first is that, to reach a true conception of the spirit of our constitutional antecedents in the Middle Ages, the jurisprudence is at least equal in importance to the mere subject matter of the law. I do not question here the English character or the early origin of the bulk of our common law; above all, I would not minimize the decisive influence of the ancient English County Court; I only say that the constitutional implications may come as much—if not indeed even more—from the law’s later rationalization as from its original character. The second proposition is that this jurisprudence, as distinct from that law, is pretty largely Roman in its derivation, though considered in the Middle Ages probably not so much specifically Roman as “common to all mankind.” The third and last is that the central political principle of this Roman jurisprudence is not, as has so often been assumed, the absolutism of a prince, but the doctrine that the people is the ultimate source of all legitimate political authority in a state.
The last of these propositions perhaps requires the most proof, for it has been most frequently disputed. “Few texts,” says the late Professor Esmein, “have exercised an influence more profound upon the development of the public law in certain countries of Europe, and above all in France,” than the Roman maxim, princeps legibus solutus est;25 but he admits that England “has had the good fortune to escape that influence.”26 This unusual good fortune, when admitted, is usually attributed to the free institutions of Anglo-Saxon England, to an unexplained development of the representative parliament in the later Middle Ages, or to some mysterious quality in the English blood or character that makes for liberty. The threat of absolutism, when it came—as of course it did—came from the despotic doctrines of the Roman law, which was “reborn” with everything else at the close of the Middle Ages. This is the theory that is generally current.
For the period immediately after the Conquest in England the evidence on which one must rest the conclusions just stated, or the different conclusions which I prefer, is slight, scattered, and rather inconclusive—a few stray sentences occurring incidentally here and there in the legal writings of the period, of which the so-called Leges Henrici Primi is easily the most important. Just at the end of the Norman period, in the only book of pure Roman law written in medieval England, in the Prologue of the Liber Pauperum of Vacarius, we find a repetition of some of the statements of the first title of Justinian’s Digest concerning the source of law, including the one that the emperor is its only establisher and interpreter. But the book of Vacarius was written entirely in the spirit of the early glossators; it is purely antiquarian and Roman and makes practically no reference to English law or its relation to the law of Rome.27
For concrete evidence of much value we have to wait till the reign of Henry II in the De Legibus et Consuetudinibus Angliae attributed to Ranulf Glanvill, Henry’s chief justiciar during his later years, and written after the enactment of the king’s great administrative reforms. Glanvill’s prologue contains certain statements of the greatest interest. It is evident that the author considers this book as a kind of English equivalent of Justinian’s Institutes, and his prologue is clearly modeled on that of Justinian though the book itself is not. A comparison of the two prologues is instructive both for their similarities and their differences. After a mention of the need for laws as well as for arms, each has a paragraph recounting the military achievements of the ruler, and then proceeds to a summary statement concerning the laws. The last of these alone is important here. Justinian’s summary refers only to the written law and the compilations of it made at his order. The one in Glanvill must in part be given in its own words. In the king’s court each decision, it says, is governed by the laws of the realm (legibus regni)28 and by customs (consuetudinibus) drawn from reason and long observed; and in these decisions the king does not disdain to consult those of his subjects whom he knows to stand out by their virtue, “by their skill in the law, and by the customs of the realm” (morum gravitate, in peritia juris et regni consuetudinibus). On this follows the sentence most significant of all:
For it should not be thought absurd to call the English laws leges although not written—why, quod principi placet legis habet vigorem, even that is a lex!—those, I mean, which have manifestly been promulgated concerning doubtful points determinable in the council, with the advice at least of the magnates and under authority of the prince.29
The reasoning of the author is here so closely parallel to that of a remarkable sentence or two in the Digest that I think he must have read them. They occur in an extract from the great Roman jurist of the second century, Salvius Julianus, compiler of the famous Edictum Perpetuum, and in the following words:
Immemorial custom is observed as lex, and not without reason; and this is the law which is said to be established by usage. For since leges themselves are binding on us for no other reason than that they have been received by the judgment of the people, it is proper that those things of which the people have approved without any writing shall also be binding on everyone. After all, what is the difference whether the people makes known its will by a vote, or by the things themselves and by acts?30
One other interesting bit of evidence of Glanvill’s attitude toward absolutism may be worth citing. The chronicler of the abbey of Abingdon tells us that in 1185, on the death of the abbot, Henry II entrusted the abbey to one Thomas of Esseburn, who thereupon proposed to hand over to the king the whole of the possessions of the abbey, including those of the prior and convent. The prior and brothers appealed to Glanvill, the chief justiciar, insisting that the possessions of the prior and convent should be excepted; and, says the chronicler,
The grace of God finally prevailed to this extent, that Rannulphus de Glanvilla, the chief of the justices, turning to the other justices, said that our customary rights had been established reasonably and wisely, that nothing excessive could be found in them, and that the lord king neither wishesnor dares to go against customs in some measure so ancient and so just or to change anything respecting them.
All the justices “who were seated around” agreed after a conference, and the curia decided unanimously in favor of the prior and brothers. The king “neither wishes nor dares!” And all the justices concurred!31
Whether Glanvill wrote the treatise attributed to him will perhaps never be known, but his own constitutional views were probably representative, and they were certainly not despotic. Nevertheless, the reference in Glanvill’s prologue to the maxim quod principi placuit legis habet vigorem, as quoted above, has been cited as proof of the absolutist doctrines both of Glanvill and of England in his time. To infer from that incidental and left-handed reference to the Roman maxim the author’s out-and-out endorsement of it seems to me only another striking proof of the fertility of the human imagination. Yet that inference has been made. I might almost say it has prevailed. It seems to me obvious, on the other hand, for reasons particularly set forth above, that this twelfth-century English jurist has seen more clearly than some modern historians the true central principle of the Roman constitution—which was not absolutism, but the doctrine that the populus is the sole source of law; that he believes this principle to apply no less to English institutions than to Roman; and, finally, that these constitutional doctrines of his are fairly representative of the ones held and enforced in medieval England.
Further reasons for the conclusions above are to be found in the explicit statements of Bracton some sixty years after Glanvill; but with Bracton the immediate subject of the present lecture becomes merged in the wider topic of English constitutionalism generally, and may be treated more clearly later as a part of that topic.
[1. ]A History of Medieval Political Theory in the West, I, pp. 8–9.
[2. ] “. . . cum ipse imperator per legem imperium accipiat” (Gai, Institutiones, I, 2, 5).
[3. ]De Legibus, III, p. 12. “It is the stoics who emancipated mankind from its subjection to despotic rule, and whose enlightened and elevated views of life bridged the chasm that separated the ancient from the Christian state, and led the way to freedom” (Lord Acton, The History of Freedom, p. 24; see also pp. 28–29).
[4. ]Digest, 1, 2, 2, 9.
[5. ] Only one has survived to modern times, the one enacted at the accession of the Emperor Vespasian, ad 69–70. For the text of it see P. F. Girard, Textesdedroit romain, 4th ed., pp. 107–8. The entrusting by the populus to the emperor of its authority to enact binding law is thus expressed by Ulpian in his Institutiones in the third century ad: “Quod principi placuit, legis habet vigorem; utpote cum lege regia, quae de imperio eius lata est, populus ei et in eum omne suum imperium et potestatem conferat” (Dig., I, 4, 1.). In the sixth century this is paraphrased thus by the authors of the Institutes of Justinian: “Sed et quod principi placuit, legis habet vigorem, cum lege regia, quae de imperio eius lata est, populus ei et in eum omne suum imperium et potestatem concessit” (Inst., I, 2, 6.). This substitution of concedo for confero in the sixth-century statement of the principle, and above all the deliberate change to a past tense instead of the present as used by both Gaius and Ulpian—these seem to warrant the view that no predecessor of Justinian had ever asserted this doctrine of absolutism quite as unequivocally as he.
[6. ]Geschichte der Staatsrechtswissenschaft, pp. 149–50.
[7. ] Édouard Cuq, Les institutions juridiques des Romains (1904), vol. I, p. xxiv.
[8. ]Geist des römischen Rechts, vol. I, title 1, chap. 2, sec. 18.
[9. ] Loc. cit.
[10. ]Dissertations on Early Law and Custom, p. 389.
[11. ]Digest, 2, 15, 14.
[12. ]Digest, 1, 7, 34.
[13. ]Digest, 2, 14, 7, 5.
[14. ]Institutiones, III, p. 145.
[15. ] Ibid., p. 146.
[16. ]Digest, 1, 3, 1. In the next fragment of the same title, from the Institutions of Marcianus, an extract is given in Greek from a supposed oration of Demosthenes in which lex is defined as π?λεως συνθ?κη κοιν?; and some have thought that the words of Papinian are a mere paraphrase of this definition. It does not seem to me probable.
[17. ]Digest, 35, 2, 1, pr.
[18. ] II, p. 249.
[19. ]Digest, I, 3, 31.
[20. ]English Law and the Renaissance, Cambridge, 1901.
[21. ]Doctor and Student, Dialogue I, chap. 5.
[22. ] This was apparently the first sentence of the Institutiones of Gaius. The single surviving manuscript of Gaius is defective in the beginning and does not include these words, but in the corresponding part of the Institutes of Justinian the whole paragraph of which this is the first sentence is quoted verbatim from the extract from Gaius in the Digest (I, 1, 9). The paragraph is the first in the Gaius manuscript, and its lost first sentence may therefore be supplied without hesitation from the Digest. It is likely that Saint-German knew it, if at all—and he probably did know it—from its inclusion in the Institutes of Justinian.
[23. ] F. W. Maitland, Select Passages from the Works of Bracton and Azo (Selden Society), p. xiv.
[24. ] “. . . car chascuns barons est souverains en sa baronie” (Beaumanoir, Coutumes de Beauvaisis, II, 1043[p. 23]).
[25. ] “La maxime princeps legibus solutus est dans l’ancien droit public francais,” in Essays in Legal History, ed. Paul Vinogradoff (Oxford, 1913), p. 201ff.
[26. ] Ibid., p. 204.
[27. ] For Vacarius, see C. F. C. Wenck, Magister Vacarius Primus Juris Romani in Anglia Professor (Lipsiae, 1820); F. de Zulueta, ed., The Liber Pauperum of Vacarius (Selden Society, 1927).
[28. ] This distinction here so clearly made between leges and consuetudines refers, I think, to the difference between enactments and customs. The peritia juris of the next sentence refers to the law or “right” involved in particular cases, and the consuetudo regni immediately following it has reference to the feudal consilium due from tenants in chief in the Curia Regis, sanctioned by a feudal customary law common in the whole realm. The old English translation of John Beames is very misleading here. He translates the words above, in peritia juris et regni consuetudinibus, “in skill in the Law and Customs of the Realm,” reading consuetudinibus as though it were consuetudinum and thus confusing and distorting the whole meaning and constitutional significance.
[29. ] Leges namque Anglicanas licet non scriptas leges appellari non videatur absurdum, cum hoc ipsum lex sit, quod principi placet legis habet vigorem, eas scilicet quas super dubiis in concilio definiendis, procerum quidem consilio et principis accedente auctoritate constat esse promulgatas.
[30. ]Digest, I, 3, 32.
[31. ]Chronicon Monasterii de Abingdon (Rolls Series), I, p. 297. It seems probable, from the details he gives, that the chronicler may have been an actual witness of what he records here, for the account must have been written soon after 1185; the chronicle itself ends in 1189. Although allowance must be made for the author’s natural bias, this is not likely to have affected the correctness of the most significant words in his quotation from the chief justiciar.
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