The Downside of Imperial Collapse
When Empires or Great Powers Fall, Chaos and War Rise
WE in England and America have inherited a longstanding tradition, and we keep repeating it without criticism, that Roman Law on its political side is the synonym of absolutism. It is time that we began to examine that tradition. When we find Nazi Germany repudiating Roman Law because it stands in the way of a program for the slavery of the world under the heel of its "Aryan" masters, we must ask why the most despotic, repulsive and oppressive system ever proposed for mankind includes among its first principles this repudiation of Roman Law.
It is not because the Nazi leaders have not seen the problem. They have seen it far more clearly than we have, and they have come to the settled conclusion that their yoke can never be imposed on the world until the universalism, the rationalism, the individualism of Roman Law are replaced by the tribal myth of Aryanism. They are forced to repudiate the catholicity of all previous European culture for a narrow tribalism which alone can justify their domination of the world. The Nazis reject Roman Law, an important element in that culture, because it is essentially universal; and because, like all universal systems, it is individualistic. To be more specific, they reject it because it recognizes what we used to call "the rights of man," and because Nazism can advance in no other way than by trampling on all those rights. If Roman Law is the despotic system we have usually assumed it to be, why should the Nazis not use it instead of rejecting it? Why should they be forced to omit it entirely as they do from their "new order" for the world? One cannot vindicate the intelligence of the Nazi leaders without questioning their sincerity. Men who could see so clearly the political implications of Roman Law for their theories of Aryan superiority could hardly be oblivious of the absurdity of the latter theory or of its completely unhistorical character. If we assume their intelligence we cannot give them credit for honesty. Here, however, we are concerned only with the correctness of their estimate of the character of Roman Law. We must therefore examine critically our own traditions concerning the political influence of the jurisprudence of Rome, for if the Nazi interpretation is right, ours is certainly wrong.
In 1605 John Cowell, a doctor of the Civil law, and later Regius Professor of that subject at Cambridge, set forth the law of England in an interesting little book in Latin modeled on the "Institutes" of Justinian, arranged in the same order, and combining English and Roman legal principles. In his dedication Dr. Cowell says that many years of study have convinced him that "our common law, as we call it, is nothing else than a mixture of the Roman and the feudal." And he adds that the bitter controversies between the respective advocates of the Civil and the common law in England would have been ended long before, and the two laws themselves combined in a single system, but for the fact that these advocates have had a greater zeal for their own private profit than for "the public glory of their country." This is a rather remarkable and a rather startling statement about the common law, and it includes a biting indictment of the common lawyers. Little wonder that Sir Edward Coke should have referred to Dr. Cowell as "Dr. Cow-heel," or that Cowell's law dictionary, the "Interpreter," published in 1607, was attacked in Parliament in 1610. For tactical reasons this parliamentary attack was ostensibly aimed at Cowell's definitions of "King," "prerogative," and "subsidy." But the real animus of Coke and the rest of the common lawyers in the House of Commons was against Cowell's insistence on the Roman element in the English common law -- such things, as he says in one of the definitions in his "Interpreter," as "have as yet no apparent acceptance amongst our Lawyers, but only a hidden use;" against his belief that both laws "be raysed of one Foundation, and differ more in language and termes then in substance, and therefore were they reduced to one method (as they easily might) to bee attained (in a manner) with all one paines;" and against his insinuation that it was the "private profit" of the common lawyers alone that led them to oppose such a reduction. We are immediately concerned here with the meaning and the correctness of Cowell's assertion that the English common law is a "mixture" of the Roman and the feudal, and with the reasons for the contrary view held by the common lawyers of the time and by a majority of these ever since. If we can answer the questions thus raised, we shall have accounted in some measure at least for our Heritage of Roman Law.
There is hardly a modern book -- hardly an English book at least -- on the Renaissance, that does not attribute the growing absolutism of that time more or less directly to the Roman Law. In the main the authors of such books seem to have taken at its face value the statement of Sir John Fortescue in the fifteenth century that the central and most fundamental principle of Roman Law is expressed in the absolutist maxim "what has pleased the prince has the force of a lex," and that wherever actual absolutism is found it is an application of this maxim. Fortescue deals with this subject in more than one place in his various works, but his "De Laudibus Legum Angliae" (or "Praises of the Laws of England") alone is responsible for the later development of the English ideas on this subject, as it alone among his writings was in print before the eighteenth century. In Chapter XXIV of "De Laudibus" Fortescue calls the doctrines just referred to "the chief principles among the civil laws" (inter leges civiles praecipua Sententia).
Almost all historians of England and of English law since Fortescue have followed him in asserting that Roman Law spells absolutism, and that England is freer than other countries because her law is less a Roman one than theirs. We may agree that England at the end of the fifteenth century was less despotic than France, as Fortescue says; we may believe that this difference became still wider in later times; but this is not necessarily to accept Fortescue's explanation of the causes of these differences. In 1605 when Cowell wrote, the rights of the subject in England were no doubt far safer from royal interference than similar rights were in France; and it is no less certain that these rights were defined by the common law and found their chief defenders in the common lawyers -- that law, as one member of the House of Commons aptly put it in 1610, was "the wall betwixt the King and his subjects." But does it necessarily follow from this that Cowell was wrong in saying, as he did, that this English common law was a mixture of Roman and feudal principles?
Answers to the questions whether Fortescue was right in saying that absolutism was the "central principle" of the Roman Law, and whether Cowell was right in his assertion that our English common law is a "mixture" of the Roman and the feudal, may possibly lead us to the answer to our own question: What is our heritage from the law of Rome?
Anyone who studies the development of our law between the Norman conquest and the Renaissance, and compares this with what went on in the same period on the Continent, in France particularly, finds an amazing similarity between English and continental institutions, including the strong influence of Roman Law, before the fourteenth century; and thereafter a remarkable change in England which led at length to bitter hostility between the common lawyers and the civilians. No such change as this took place in France, where the development of Roman Law was unbroken. But it did take place in England. Thus by the last quarter of the fifteenth century Fortescue thinks he finds despotism to be the central principle of the Roman Law, and the chief proof of it he believes to be the government of France which is a regal or despotic (despoticum) rule; while England's is by contrast a rule regal and "constitutional" (politicum). For him, France was a despotism because she had stuck to the central principle of the Romans that what has pleased the prince has the force of law; while England had developed a constitutional government in defiance of this Roman principle.
There is no question of the difference between England and France that had come about by Fortescue's time, but there is a very great question as to the part played by Roman Law in making that difference. Furthermore, there is no question that Fortescue retains, and carries further, principles of constitutional government which can be found two or three centuries earlier in England; but this does not necessarily mean that he retains the same attitude toward Roman Law, or the same definition of Roman political principles, held by his predecessors at that time. He was right in pointing out the growing contrast between England and France; wrong, I believe, in attributing this difference to Roman legal principles. He was right in his contention that the English rule was freer and less despotic than that of France in his day; right, too, in his implication that England no longer applied Roman Law to the same extent as in France. But in his assertion that Roman Law means absolutism and his implication that English liberty is the result of the discarding of Roman Law -- there, I believe that history proves him and those who have followed him to be clearly wrong.
Probably the strongest proof that earlier English lawyers had a conception of the political aspect of Roman Law different from that of Fortescue is to be found in the great book of Bracton on "The Laws and Customs of England," finished soon after the middle of the thirteenth century. To Bracton the maxim that the will of the prince has the force of law is not, as it was later for Fortescue, a statement of absolutism and at the same time the "central principle" of Roman jurisprudence. On the contrary, he finds that central principle, I think, in a notable passage from Papinian in which a law is said to be, not the will of the prince, but the "common engagement of the republic" -- a passage which Bracton quotes with approval and clearly believes to apply to his own country as much as to Rome. He is acquainted, of course, with the famous maxim that what has pleased the prince has the force of law, but he thinks that if it applies to England at all it is because the passage of Justinian's "Institutes" in which it occurs is in reality a reference only to the popular origin of the Emperor's authority, which in no way implies its arbitrary character. In fact, Bracton regards the Lex Regia to which the "Institutes" refer here as the Roman equivalent of the English coronation oath in which the kings at their accession swore (or were soon to swear) to govern according to the laws chosen by the people. For him Roman Law clearly means a constitutional rule, not a despotic one. He cites more than one passage of the Roman Law books indicating that fact and apparently finds none which denies it, and for him England is therefore like Rome in the enjoyment of such a constitutional form of government.
Bracton does not distinguish the essentials of English constitutionalism from those of Roman constitutionalism. To him they are more alike than unlike. In neither of them does he find absolutism "the central principle;" in both that central principle is rather that the the people alone, and not the prince, is the source of all legal authority. No one who reads Bracton with attention can doubt his constitutionalism; no one can deny his reliance on Roman legal principles; and no one has ever been able to show that in this Bracton does not faithfully represent the legal thinking of his day. What we now know from the recently published cases decided in the earlier thirteenth century confirms the view that Martin of Pattishall, William of Raleigh, and the other earlier English judges whose decisions Bracton cites so often in his book, held the same fundamental constitutional position as he, and placed the same reliance on Roman jurisprudence in support of it. Bracton was by no means the first -- he was nearer to the last -- of those English lawyers and judges who identified the essentials of English and Roman constitutionalism. And that tradition may be traced back safely as far as Glanvill, in the reign of Henry II, when the mediæval revival of Roman Law was still in its early stages. Bracton is thus a standing proof of the fallacy of our current notion that English law from the beginning has been less influenced by Roman jurisprudence and Roman political ideas than continental; and that it is for that reason a more constitutional and a less despotic system.
If corroboration of Bracton's evidence were needed, we might find it in the history of canon law in England from the Conquest to the thirteenth century. The recent careful examination by Dr. Zachary Brooke of the English manuscripts of the canonical books in this period fully warrants his conclusions, in opposition to Stubbs and the earlier Anglican nationalist writers, that "the law of the Church, the whole law and not a selected part of it, was the law of the English Church;" and further, that "there is no shred of evidence to show that the English Church in the eleventh and twelfth centuries was governed by laws selected by itself." When we remember that the English judges in this important period in the formation of our common law were all ecclesiastics, and when we consider the common Roman features of the canon and the civil law, the importance of these facts in the building of the general principles of the common law itself, public as well as private, will at once become evident.
For a generation or more English historians almost without exception had accepted without due examination or criticism the view set forth by Bishop Stubbs in the celebrated Report of the Ecclesiastical Courts Commission of 1883, that the canon law in its entirety was never in force in mediæval England, but only such part of it as the Church of England saw fit to receive. Stubbs was led to this belief by the undoubted fact that in England, as in other particular provinces of the universal Church as well, there did exist certain traditional rules and even certain "constitutions" which were peculiar to the country, had no application outside it, and were therefore no part of the "common law" of the Church Universal. From this fact he drew the unnecessary inference that no part of the canon law was in force in England if the Ecclesia Anglicana did not receive it. He regarded canon law as a foreign law, and if it was employed in any jurisdiction in England it was only because this was an "indulged jurisdiction," as Sir Matthew Hale called it in the seventeenth century in his "History of the Common Law." But between the thirteenth century and the seventeenth the whole notion of a "common law" had undergone considerable change. In the seventeenth century Lord Hale was entirely justified in regarding such courts as that of the Admiralty as "indulged jurisdiction." Other courts whose procedure also followed the Civil rather than the common law had been abolished by statute, such as the Court of Star Chamber and the High Commission for Ecclesiastical Causes; and such courts as remained in reality existed only by sufferance of the sovereign authority in the state. In the seventeenth century they were "indulged" by Parliament, and for this reason to Stubbs the Civil law which they followed had always been "indulged" by the English Church. Now this is a non sequitur, and a serious one. In the Middle Ages and afterward, in secular matters as well as ecclesiastical, a law, in order to be "common" need not be necessarily exclusive: it was a subsidiary rule which merely underlay particular rules which differed from it, not one which overrode them unless they were utterly inconsistent with it. Common law and particular law stood side by side, the former assumed by the Courts without specific proof, the latter accepted as valid if proved and not against reason common law or statute. The existence of ecclesiastical rules peculiar to England in the Middle Ages is therefore no valid basis for the conclusion that England repudiated the law common to the whole Church. Common law is merely the system to which recourse is had when no particular law applies, it in no sense excludes all particular law. For example, in Germany after the reception of Roman Law, German custom was not abolished, it merely ceased to be the reservoir on which the judges drew in cases where no such custom was applicable.
Probably it was a clearer understanding of what a common law thus always implied -- or rather, what it did not imply -- which led Maitland to reject the generally accepted view that canon law was merely "indulged" in mediæval England. If this rejection is supported by the facts of the time, as I believe it is, this has an important bearing on the larger question of the influence of Roman law on the development of our legal institutions, public and private, in the most critical of all the periods in their development. The insular character of English canon law cannot be dated before the sixteenth century; the insular attitude toward Roman Law not before the fourteenth.
Our attention has hitherto been directed toward England alone, and Bracton has been taken as the most likely index of the extent and character of the Roman Law influence upon our political institutions and ideas about the middle of the thirteenth century. If now we should compare his book in this respect with the writings across the Channel most nearly comparable in time and in subject matter, the impression of the importance of Roman Law in England would, I believe, be heightened rather than lessened. The continental book that naturally occurs to one as probably the fairest basis of such a comparison is the "Summa De Legibus," written by an unknown author about the same time as Bracton's book, and dealing with Norman institutions in much the same way as he was dealing with those of England. But any comparison of the two books, even an incomplete one, would soon show that the influence of Roman Law is stronger and more pervasive in the English book than in the Norman one.
What has been said thus far applies to England from the eleventh or twelfth century down to probably the end of the thirteenth, or possibly a little later; but it would be unsafe on the existing evidence to extend it much further. This, however, is far enough to prove its fundamental importance; for the period between the eleventh and the thirteenth century is beyond question the most decisive by far in the whole evolution of our legal institutions and ideas. We talk about "the Renaissance" and its influence on our political institutions and our law, and they were no doubt of the greatest importance; but we sometimes forget that some three or four centuries earlier there was a true "Renaissance" whose influence on our law and politics was far more fundamental and more lasting. It was then, and not later, that our common law, our notions of the relations of law and government, in fact our whole conception of the state, took much of the form that they retain to this day.
To make my point I have had to include some tiresome history, for this is a historical question. But if that history is correctly stated, the inferences to be drawn from it are clear. I shall try to state them in a series of short propositions.
Our heritage from Roman Law is very great, and it has not been appreciated. Dr. Cowell was right in saying that our common law was a "mixture" of the Roman and the feudal. The common lawyers who opposed him were right in defending the common law as "the wall betwixt the King and his subjects." But they were wrong, as Fortescue before them was wrong, in holding that the central political principle of the Roman Law was the despotism of the maxim that what pleases the Prince has the force of a lex; and wrong also in believing that the English common law could include none of it. I am here not attempting to defend all of Cowell's inferences or some of his definitions. I am asserting only that in his statement that the common law of England is a mixture of the Roman and the feudal he was far nearer than his opponents were to the views of the great builders of our common law in the most critical period of its evolution, such as Glanvill and Bracton, and, in fact, all the judges before the fourteenth century.
Those early judges saw, as their English successors could not see, that the central principle of Roman Law is not to be found in absolutism. Unlike Fortescue and the later lawyers, they did not interpret the maxim of Justinian's "Institutes" as a statement of despotic power, but rather as a reference to the fact that all the authority of a prince must come ultimately from the people. If Bracton saw any "central" principle in Roman Law, it was not absolutism but the doctrine of Papinian, that all law is the "common engagement of the republic," a doctrine which Bracton quotes and applies without reserve to his own country. He had a greater knowledge and a clearer vision of the political meaning of Roman Law than Fortescue or Fortescue's successors. To him it was not so much Roman as universal, and its central principle was that law is the creation of the people alone whenever and wherever it is found. Sir Edward Coke, narrowminded conservative though he was, was one of the great heroes in the history of our constitutionalism, for in his day the common law was the only "wall" against the despotism of the Stuarts. And the party he was opposing, to which Cowell belonged, we must also admit, was striving with might and main to "leape over or breake downe this wall," as one of its opponents charged in the House of Commons. Cowell owed his advancement to Archbishop Bancroft, the leader of this party; his books were written at Bancroft's suggestion, and the "Interpreter" itself was dedicated to him. Yet in this there is no invalidation necessarily of Cowell's contention that the common law itself was a "mixture" of the Roman and the feudal. It is this alone that I am arguing, for it is in the "mixture" that we find our greatest inheritance from Roman Law. Coke was defending against Cowell the liberties of England enshrined in the common law; but Cowell, it seems to me, was in some respects the better historian of the early development of that law.
There is nothing very new in this argument. It may be found stated in far better terms than mine in some of the pamphlets written against the non-jurors and their doctrines of non-resistance immediately after the English Revolution, especially in some "Reflections Upon the Opinions of Some Modern Divines," in which the author proves with great learning that the Lex Regia of Rome, like the common law of England, "did not overthrow the Propriety of the Subject." This would, and it did, refute the specific doctrine of Cowell's "Interpreter" that an English king could take a subsidy without consent. But it corroborated Cowell's general contention that the English law is a "mixture" of the Roman and the feudal; for the English principle of no taxation without representation is an outgrowth of the mixing of feudal custom and the principles of the Roman Law in the period of Granvill and Bracton. And in estimating the extent and the nature of this "mixture" in our modern liberty we must not overlook the fact that this "Propriety of the Subject," which the Roman and the common law both put beyond the ruler's reach, as the pamphleteer said, included far more than our modern mere "property rights." In the feudal period when this "wall" was built against the encroachment of government, "propriety" included most of those rights of the subject which we call personal as well as proprietary; it protected the integrity of the status of the serf as well as the feudal immunity of his lord. Thus this "wall," built of local materials, the customary law of the country, but fashioned on a plan that owed much to Roman jurisprudence, marked off a field in England, as it had in Rome, into which the power of the prince could not lawfully intrude. And this field in the Middle Ages included not alone the territorial fiefs of the King's subjects, but their immunities, or liberties, or franchises, as they were called, as well as their dignities, their offices, and their personal status.
It is not too much to say that most of the safeguards of the individual which we prize today have their origin in these feudal immunities or liberties. They began in local English customs which undoubtedly preceded the revival of Roman Law in England; but the principles on which these diverse customs were fused and made "common," and above all the legal remedies gradually evolved to prevent or punish their breach, came in large part from the Roman Law. And they were devised by men who revered that law as their successors did not, and who even regarded it as a system almost synonymous with human reason. In the universal principles of this Roman Law, as these founders of our common law saw them, the central principle was certainly not despotism. John of Salisbury, a contemporary of Granvill, quotes much from Justinian's law books; but I recall no quotation of the well-known maxims of absolutism. Instead we find the famous Digna Vox of the Emperors Theodosius and Valentinian -- "Indeed it is on the authority of the law that our own authority depends."
The recent developments in this present World War have done more than merely wake us up to the deadly threat that a totalitarian victory would hold to our whole way of life. They have brought home to every man, except to those hopelessly blind or selfishly indifferent, the necessity for action, and immediate action, if our own fate is not to be the fate of Denmark and Norway, of Holland and Belgium and France. And they have done even more than that. These developments, together with the official pronouncements of the totalitarian adventurers themselves, have convinced all thinking men at last -- and it has taken much to do it -- that the present struggle is far more than any mere battle for the domination of Europe or even of the world. It now stands out, confessedly and openly, as an attempt to set up a "new order" in the world, an order in which the traditions of the race, in culture, law, morality, and religion, are all to be thrown down and supplanted by a complete étatisme, maintained by brute force and designed to crush all initiative, to override every individual right, and to substitute for the law in which this right is enshrined the naked will of the ruler alone. This ruler is represented in this "new order" as the living voice of a culture that is tribal and not universal. He is the "leader" of a race of masters with a divine though heathen right to a rule which they now mean to exercise over a subjugated world of slaves. The official statements of the present Nazi leaders leave no doubt that nothing less than this is the program they propose to enforce upon every part of the world when once it has been overrun by their military power or subdued by their economic power.
The "new order," then, would be a cultural as well as a political revolution. It would destroy at a blow traditions honored and cherished, even if not always lived up to, for more than two thousand years. Roman Law is far from being the whole of this great inheritance. But it is an important part, and a part, I am convinced, which our particular Anglo-Saxon tradition in its later interpretation has sometimes led us to overlook or underrate.
The appalling recrudescence in the last few years of an absolutism that we fondly thought the world had renounced forever makes somewhat clearer than before our duty and also our debt to the Law of Rome. This crisis in the world's history is the most serious in a thousand years. Because Nazi tribalism rejects the universality of Roman Law we know the better that at all costs we must maintain it; because the despotism of present-day Germany overrides all the private rights that the Roman and the English law protect, we are the more conscious of the value of these rights and the more determined that they shall not perish from the earth.