Page:Harvard Law Review Volume 32.djvu/389

353 MILITARY LAW— A STUDY IN COMPARATIVE LAW 353 codes preceded the Twelve Tables, and to what extent the priestly caste regarded their law as legislation rather than as a mass of principles, we have no means of knowing with any certainty. The Twelve Tables themselves were undoubtedly far from a com- plete statement of Roman law when they were enacted. They rather constituted a great reform statute. Cruel and harsh as many of its provisions seem to us, it undoubtedly was, in its day and generation, legislation intended to protect the weaker classes against the exactions of a military and a priestly aristocracy. At any rate, from an early period, the Roman law showed a strong tendency to reduce its principles to form and order; to embody them in what was practically legislation; and to base its subse- quent development in part upon this legislation. Its future juris- tic growth was in part in the form of commentaries upon this early legislation; commentaries which gradually covered the orig- inal foundation with a mass of law under which the Twelve Tables were practically buried; but which nevertheless, in theory at least, rested upon them as their sole foundation. Along with this development was the constant tendency to resort to legislation for the purpose of affording systematic aid to the development of the law and for introducing new principles into the law. The Roman law did not regard a statute as an arbitrary rule made by an external power which had authority to give orders to the court; which the courts must obey as far as the specific order went; but formed no part of the living, growing law. On the contrary at Roman law a statute was a source of law from which new principles could be deduced and from which analogies could be drawn.^° Subsequent legislation, in other words, was treated, like the original Twelve Tables, as a source of law for further com- ment, interpretation, and juristic growth. The military law of England existed apparently from the out- Institutes of Roman Law (Ledlie's translation), 3 ed., Pt. I, Chap. I, § 11, p. 48 e/ seq. GiRARD, Short History of Roman Law (translated by Lefroy and Cameron), Chap. II, § I, I, p. 47 et seq. i Cuq,Les Institutions Juridiques des Romains, § i, Bk. I, Chap. Ill (I), § 2, p. 28 et seq. Czyhlarz, Lehrbuch der Institutionen des R6- mischen Rechtes, § 7, p. 12. Kuhlenbeck, Entwicklungsgeschichte des Ro- MiscHEN Rechts, Bk. II, Chap. 11, § 4, p. 152 et seq. Esmarch, Romische Rechtsge- schichte, 3 ed., Bk. I, Chap. Ill, §§ 20-25. Voigt, Romische Rechtsgeschichte, §4. " Roscoe Pound, "Common Law and Legislation," 21 Harv. L. Rev. 383.