James Bryce Bryce.

Studies in history and jurisprudence online

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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 concep-
tion 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 ad-
mitted. Whether this involved a practical loss is a diffi-
cult 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 Ger-
many, Scandinavia, and Scotland forgot to dwell suffi-
ciently on the fact that though marriage is a civil rela-
tion 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 ad-
vancement 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.




NARROW as is the sea that parts England from the continent
of Europe, it has cut her off as effectually from many conti-
nental 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 compara-
tively 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.

Such isolation has been in no respect more marked or more

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


fruitful in results than in the case of our law. In spite of the
immense power of the mediaeval church, in spite of the influ-
ence 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 develop-
ment 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. What-
ever be the cause, it is clear that Roman law was never tho-
roughly 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 ' ; and there is abundant evidence that the study was
regularly pursued there down till and in the sixteenth cen-
tury. 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, main-
tained 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 Reforma-
tion finally broke the link between England and Rome, and

' Oriuntur discordiae graves, lites et appellationes antea inauditae. Tune leges
et causidici in Angliam primo vocati sunt, quorum primus erat magister Vacarius.
Hie in Oxenefordia legem docuit, et apud Romam magister Gracianus et Alexan-
der, qui et Rodlandus, in proximo papa futurus, canones compilavit.' (Gervas.
Dorob. ; Act. Pontif. Cantuar. ; Thcodbaldus.}


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 1 . 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 biogra-
pher, ' 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.'

The ancient rivalry of the Civil and the Common law
proved eventually the cause of mischief to both. Having
reigned supreme in the universities, the civil law had never
taken root in the Inns of Court, and when it fell in the uni-
versities 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

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


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 Cam-
bridge 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 in-
creased 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 over-
weening pretensions of emperors and popes, has at last van-
ished. 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 princi-
ples, 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 oi English law, dif-
ferent 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 ' ? 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 pro-
blem which Justinian partially solved, and which several mo-
dern states, as notably France, Austria, Prussia, and Italy have
again had to solve *, English lawyers are being driven to ex-
amine the means whereby codification was accomplished,
and the results that followed it. They feel that for the exe-
cution of so great a work men are needed who have had some-
thing 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 Uni-

1 This was effected by the Judicature Act of 1873.

3 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.

INAUGURAL UI< Ti /,/; sir,

versity of Oxford not merely a motive for endeavouring to
revive the study, but a reasonable hope that it maybe revived
with success, to the substantial benefit as well of the univer-
sities themselves as of the legal profession.

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 know-
ledge 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 aca-
demical 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 Re-
search 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 per-
meated 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 republi-
can 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 inter-
twined 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 charac-
ter 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 enthu-
siastic 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 lite-
rary spirit and feeling of the Romans, which is due to legal
influences, and which can be fully apprehended and ex-
pounded 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 ju-
risprudence ; 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 in-
deed 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 specula-
tion ; and it is more than an accident that long after the lan-
guage 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 edu-
cation 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 Em-
pire, 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 Ger-
many, 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 com-
mon 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 sys-
tematized 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 concep-
tions, 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 com-
parative 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

Online LibraryJames Bryce BryceStudies in history and jurisprudence → online text (page 74 of 80)