Page:Harvard Law Review Volume 32.djvu/388

352 352 HARVARD LAW REVIEW the great difference between military law and Anglo-American law is found in the form of each and in the method of growth. To those who are famihar with Anglo-American law and Roman law and who have given any consideration to the form and to the method of growth of military law, what is to be said here upon this subject will be trite and commonplace. To those who are familiar with the form and the method of growth of Roman law it will be necessary only to point out the corresponding charac- teristics of military law. Those who have never considered the peculiarities of Roman law as to form and method of growth and who have considered military law as merely a special variant of Anglo-American criminal law, may have wondered at the great difference between the two latter systems of law upon these points. It is with the hope of arousing interest and securing cooperation in an investigation of this subject that the following suggestions are offered. n Beginning with the reign of Henry II the common law^ has been what we call with our inaccurate nomenclature, unwritten law. It has been a judicial development of legal custom by tech- nically trained tribunals aided by a technically trained bar. It is possible that popular custom was worked over by the courts from an early date and to a far greater extent than many writers upon Anglo-American law will admit. In any event, whatever the relative proportion of popular custom and judicial custom, it was not based on legislation. The royal constitutions and the statutes of Parliament have modified its development, sometimes aiding it, sometimes hindering it; but at no time did English law take the form of a legislative code as a basis for juristic develop- ment. Roman law on the other hand, at the earliest known period of its development, took the form of a written code.^ What other ' "Common law" is used here as the law of the King's courts. For convenience no account is taken of the relics of the older law that lingered in the local courts; or of the law of the courts which administered the Law Merchant. ' MtHRHEAD, Historical Introduction to the Private Law of Rome, 2 ed., Pt. II, Chap. II, §§ 21 et seq., p. 94 et seq. Melville, Manual of the Principles of Roman Law, Pt. I, Chap. I, § 11, pp. 6-9. Walton, Historical Introduction to Roman Law, 2 ed.. Chap. XL SalkoWski, Institutes and History of Roman Private Law (Whitfield's translation); Introduction, Pt. II, § 7, pp. 27, 28. Sohm,