Page:Harvard Law Review Volume 32.djvu/408

372 372 HARVARD LAW REVIEW primarily for the purpose of adjudicating cases. In both cases the court does not know the law in theory, and frequently does not know it in fact. The key to the development of military law is probably to be found in the position of the Judge-Advocate- General. The fact that the Judge-Advocate-General, and not the commanding officer of the court-martial was the trained legal expert, has caused the Judge-Advocate-General to take the place in military law which in Roman law was occupied by the juris- consuUus; while the commanding officer who has power to con- vene the court-martial roughly takes the place of the praetor; and the court-martial itself takes the place of the judex. Back of this is another question for the student of compara- tive law. Is the Roman method of declaring and developing law, the normal method of the Aryan when he rises above the tribal custom into technical law? The development of political authority in England caused a partial separation of powers. The very essence of military organization is a concentration of powers. The fundamental idea of the administration of government in Rome was the imperium; now concentrated in the person of the king; now scattered among the different high officers of Rome; and finally concentrated again in the hands of the emperor. Is it the concentration of military power in the hands of the Presi- dent as Commander-in-Chief which has resulted in his exercise of authority to declare law in advance? Has the development of law in England, departed from the normal method that Rome followed because of its political and constitutional history? Has equity followed this distorted method of development of the com- mon law because of its desire to follow the analogies of the common law except as far as this might be inconsistent with the peculiar and essential principles of equity? Is our enormous mass of judicial precedent and the sharp separation between the law which is made by legislation and the law which grows by judicial decision, a part of the price which we have to pay for democracy? Roman law developed in a manner more symmet- rical and with better coordination than our own, although the symmetry of Roman law is more apparent than it is real. But Rome was at all times an autocracy although the autocratic power was sometimes put in commission among a number of different officers. Can we work out a means of developing our own law