More recent learninglearning which on some points is extremely recent,has taught us that many of these assumptions are doubtful and many othersare certainly falseThe Roman Empire was never wholly lostnor the RomanLaw eitherThe Empirewith Caesar at the head of itand with some institutionsassociated with it which even pointed back to the Republican Roman period,survived to be destroyed by Napoleon Bonapartethough no doubt it was everdecaying and sinking into a heap of ceremoniesnamesand formsThe RomanLawon the other handwas practically everywhereand its tendency was,not to decaybut to extend its area and enlarge its authorityThe systemsof local custom which first established themselves in the new Europe betraya large ingredient of Roman Law it many portions of their structureAt alater datewriters of treatises professing to set forth the wholeor adefinite partof the institutions of particular countriesare found tohave borrowed considerable fragments of books which the Romans regarded asof authorityAnd then we seem to see a whole flood of Roman jurisprudencespreading to the ends of civilised Europe.
No one explanation can be offered of these factsIn some countriestheRoman Law probably never ceased to be obeyedand the foreign element inits institutions was the barbarous usageIn others the reverse of this occurred;the basisat least the theoretical basisof the institutions was barbarous,but the Roman Lawstill known to some classeswas rapidly absorbedA barbaroussystem of law is always scantyand if it be contiguous to a larger and snoreextensive systemthe temptation in practitioners to borrow from this isirresistibleOnly the other daythis process was full in view in BritishIndiaThe bulk of the Native Indian law was extremely narrowIn whole departmentsof affairsno rules were found to settle controversies which naturally roseupAnd the result was that the bulk of Native Indian law was gradually becomingEnglish through the filtration of rules into it from the more extensive systemby its sideAnd this went onuntil both the English and the purely Nativelaw were gradually superseded by the new Indian CodesWe are nothowever,to suppose that the Roman Law came to be received by European communitiesthrough any process resembling legislationIn the history of lawit isalways essential to keep in mind the fact that legislatures are of very recentappearance in modern EuropeThe earliest attempt to distinguish clearlybetween legislative and executive powerbetween legislative and executiveactionhas been traced to an Italian writer of the fourteenth centuryThepowerful bodies from which many of the legislatures are descendedassembliesof great men advising and controlling kingswere not true legislatures themselves.
They assisted occasionally in the making of lawsbut that was because law-makingwas recognized as important businessand the duty of these CouncilsParliamentor States-Generalwas to advise the King in all important businessIn truth,far the most influential cause of the extension of particular laws and ofparticular systems of law over new areas was the approval of them by literateclassesby clergymen and lawyersand the acquiescence of the rest of thecommunity in the opinions of these classesWhen then we are asked by whatlegislative authority International Law came to be adopted so as to makeit binding on particular communitieswe should rejoin that the same questionmust first be put respecting the extension of Roman law and of every othersystem of law whichbefore the era of legislaturesgave proof of possessingthe same power of self-propagation.
A great partthenof International Law is Roman Lawspread over Europeby a process exceedingly like that whicha few centuries earlierhad causedother portions of Roman Law to filter into the interstices of every Europeanlegal systemThe Roman element in International Law belongedhowevertoone special province of the Roman systemthat which the Romans themselvescalled Natural Law orby an alternative nameJus GentiumIn a book publishedsome years ago on 'Ancient LawI made this remark'Setting aside the TreatyLaw of Nationsit is surprising how large a part of the system is made upof pure Roman lawWherever there is a doctrine of the Roman jurisconsultsaffirmed by them to be in harmony with the Jus Gentiumthe Publicists havefound a reason for borrowing ithowever plainly it may bear the marks ofa distinctively Roman origin.I must observehoweverthat the respectfor natural law as the part of the Roman Law which had most Cairns on ourreverence did not actually begin with the international lawyersThe habitof identifying the Roman law with the Law of Naturefor the purpose of givingit dignitywas of old date in EuropeWhen a clergyman or a lawyer of anearly age wishes to quote the Roman Law in a country in which its authoritywas not recognisedor in a case to which Roman Law was not allowed to apply,he calls it 'Natural Law.When our Edward III laid a document before thePope for the purpose of establishing his claim to the French throneandof contending that the descendants of women may succeed to the property orthrone of a male ancestorhe spoke of himself as arguing on Natural Law;though in point of fact the power of women to transmit rights of inheritanceto their descendants was pure Roman Law of recent originand was not speciallyconnected in any way with the Law of Nature.
