Page:Select Essays in Anglo-American Legal History, Volume 1.djvu/376

 362 //. FROM THE llOO'S TO THE 1800'S regain it, though the Customs Union of the German States, formed in 1829, had been a presage of what was coming. VII. Private Law least affected by Political Changes or Direct Legislation One phenomenon is common to the legal history in all these nations. That part of the law which has the greatest in- terest for the scientific student, and the greatest importance for the ordinary citizen, the private civil law of family and property, of contracts and torts, has been the part least affected either by political changes or by dii'ect legislation. It has been evolved quietly, slowly and almost imperceptibly, first by popular custom, then by the labours of jurists and the practice of the Courts. Direct legislation by the supreme power has stepped in chiefly to settle controversies between conflicting authorities, or to expunge errors too firmly rooted for judges to rectify, or to embody existing usage in a definite and permanent form. In the sphere of private law, and even in that of criminal law (so far as not affected by politics), legislation scarcely ever creates any large new rule, and seldom even any minor rule which is absolutely new, not an enlargement of something which has gone before. Pure legislative novelties mostly turn out ill. Fortunately, the good sense of Englishmen, like that of Romans, has rarely permitted them to appear. The parallel drawn between the history of Roman and that of English law is less instructive when we reach the later stages of that history. It cannot be made complete, not only because we know comparatively little of the inner condition and practical working of the Courts after the time of Con- stantine, but because there was after his time both a political and an intellectual decay, which few will profess to discover in the England of this century. The expansion and enrich- ment of the Roman system had stopped even before Constan- tine, while that of English Law is. still proceeding.^ In Eng- of his Corpus luris began to be issued, and it was virtually superseded in the end of the ninth century by the Basilica of the Emperor Leo the
 * Within two centuries after Justinian's time official abridgements