A Concise History of the Common Law. Theodore F. T. Plucknett

AND RELIGION

       CHAPTER 2. THE CONQUEST TO HENRY II: THE BEGINNINGS OF ADMINISTRATION

       CHAPTER 3. THE GREAT CHARTERS: LAW SEPARATES FROM ADMINISTRATION

       CHAPTER 4. EDWARD I TO RICHARD II: STATUTES AND SOCIAL REVOLUTION

       CHAPTER 5. THE FIFTEENTH CENTURY: THE PROBLEM OF ENFORCEMENT

       CHAPTER 6. THE TUDORS: RENAISSANCE, REFORMATION AND RECEPTION

       CHAPTER 7. THE STUARTS: STRUGGLE FOR THE SUPREMACY OF LAW

       CHAPTER 8. THE EIGHTEENTH CENTURY: INDUSTRIAL REVOLUTION

       CHAPTER 9. THE NINETEENTH CENTURY: LIBERALISM AND REFORM

A GENERAL SURVEY OF LEGAL HISTORY

      SUMMARY

       The Roman Empire

       The Rise of Christianity

      Legal history is a story which cannot be begun at the beginning. However remote the date at which we start, it will always be necessary to admit that much of the still remoter past that lies behind it will have to be considered as directly bearing upon the later history. Moreover, the further back we push our investigations, the scantier become our sources, and the more controversial and doubtful their interpretation. The comparatively short period of recorded history based upon documents soon leads us back to the immensely long ages of which we know nothing save through the methods of the archaeologist. Into this enormous field of pre-history we shall not venture, although from time to time it will be necessary to refer to it when the problems of history raise immediate questions of pre-history. Indeed, even the relatively brief span of written history is too complex and too diverse for treatment here. The age which saw the first beginnings of English history, witnessed also the decline of Roman law which had run a course of a thousand years, making priceless contributions to civilisation. But behind the Roman system were others still more ancient—Greek, Semitic, Assyrian, Egyptian—all with long histories of absorbing interest.¹ These remoter systems are all being studied with great skill by many modern experts, and the list of them is still growing. Recent researches, for example, have brought to light much material on the law of the Hittites, who were little more than a name to us a generation ago.

THE ROMAN EMPIRE

      For the purposes of this concise history we can begin with the advent of Christianity. Itself the culmination of several centuries of religious and ethical thinking in Judaea, it entered a world which was dominated by legal and political ideas which were in turn the result of centuries of political and juristic experience. Rome had reached the peak of its greatness. An Empire which spread over the entire civilised world, and which owed so much to the ideas of law and of government, seemed to be almost a revelation of the divine mission of the State. Government was the sacred destiny of the Roman people. To others might be left the vocations of art, of literature, of science; the Roman’s part was to rule the nations, to impose the Roman peace and respect for law upon the barbarian, sparing the submissive with statesmanlike tolerance, and crushing resistance with ruthless force. This immense Empire had been acquired through the energy of Roman armies, and preserved by the diligence of Roman administrators, but the time came when both services betrayed their master. Generals indulged in the game of making and deposing emperors; provincial governors exploited their subjects, a hierarchy of functionaries grew up such as China possessed, and as part of the system of taxation imposed upon the people, a similar system of caste from which escape was almost impossible. In the meantime, a steady infiltration of barbarian blood changed the character, the culture, and finally the language of the ruling classes.¹ By slow and almost imperceptible degrees the ties that bound together the Roman Empire dissolved, and the mysterious and complicated fall of Rome became complete.

      “The two greatest problems in history, how to account for the rise of Rome, and how to account for her fall, never have been, perhaps never will be, thoroughly solved.”²

THE RISE OF CHRISTIANITY

      While imperial Rome was slowly declining, Christianity was entering on a period of remarkable growth. At first it was hardly noticed among the numerous new cults which were fashionable importations from the Near East, some of which were extremely popular. After being ignored, it was later persecuted, then under the great Constantine it was at last tolerated (324). So far, the established “Hellenistic” religion had been considered as an official department, and its priests as civil servants. Attempts had been made to incorporate with it the religions of Isis, Mithras, Christ, and others, on a similar footing, combining all the known gods in one vast polytheism, whose cult was to be maintained and controlled by the State. It was soon evident, however, that Christianity would not accept this inferior position. Although some things were Caesar’s, others were God’s, and from this fundamental conflict arose the problem of Church and State, which has lasted from Constantine’s day to our own. The controversy took a variety of forms in the course of the succeeding sixteen centuries. Stated in its broadest and most general terms, it means that many earnest thinkers find it impossible to accept the State as the highest form of human society, and that they recognise some situations in which they would feel bound to obey some other duty than that imposed by the State. On the continent it lay at the root of the long conflict between the Empire and the papacy; in England it took such varied forms as the conflict with Thomas Becket, the discussion in Bracton as to the real position of the King (who is subject, he says, to God “and the law”), the Puritan revolution—and may even be traced in the American constitutions, for the modern attempts to curb the power of the State by means of constitutional limitations are the result of the same distrust of the State as was expressed in former days in the conflict between religion and the secular power. It was also during the reign of Constantine that the great Council of Nicaea was held (325), attended by almost three hundred bishops from all parts of the world. Besides settling many fundamental matters of doctrine, this council gave an imposing demonstration of the world-wide organisation of the Church, and from this point onwards that organisation grew increasingly effective, and the Church became more and more a world power. As a result, the Empire had to admit the presence first of a potent ally, and soon of a vigorous rival.

      “The Nicene canons are the earliest code that can be called canon law of the whole Church, and at least in the West they enjoyed something like the same finality in the realm of discipline that the Nicene Creed enjoyed in the realm of doctrine.”¹

      Indeed, while the organisation of the Empire was slowly breaking down, that of the Church was steadily growing, with the result that the Church soon offered a career comparable to, if not better than, that afforded by the State to men of ability who felt called to public life.² Some specialised in the study of theology; others took up the work of creating the great body of canon law which for a long time was to perpetuate the old Roman ideal of universal law. With all this, the growth of the power of the episcopate, and particularly of the papacy, was to give a new aspect to the ancient city of Rome, and slowly, but certainly, the Empire ruled from Rome was being replaced for many purposes by Christendom ruled by the papacy.