318 HISTORY OF ROMAN LAW 



history, and the best of that work has been done in the field of Roman 

 public law. In the field of private law they have relied on French and 

 German writers, not only for the historic facts, but for the inter- 

 pretation of those facts. 



But, it will be asked, are the modern Anglo-American and the 

 ancient Roman legal systems fairly comparable quantities? Are 

 there such broad analogies in their general development as to war- 

 rant the hope that a minute study of the one will be serviceable in 

 interpreting the other? I grant the differences; they are sufficiently 

 evident; but I insist on fundamental although less obvious analogies. 

 The constitution of the Roman Republic was substantially an 

 unwritten law, as is the English Constitution. It consisted of pre- 

 cedents, that is, of adjustments reached in the political field at the 

 close of political conflicts. Of these adjustments only a part was 

 incorporated by the Romans or has been incorporated by the English 

 in declaratory statutes. In establishing their Republic, the Romans 

 retained their ancient kingship for ceremonial purposes, housing the 

 rex sacrorum in the old royal palace and parading him as figurehead 

 of the state church. The real powers of the kingship in church and 

 in state were intrusted to officials; and these in the Latin Repub- 

 lic were elected by political parties. The English have retained a 

 less shadowy kingship, but they have transferred the really import- 

 ant powers of the crown to a small body of officials who represent 

 the dominant party in an elective assembly. The Romans put 

 their ex-magistrates into their Senate, the English keep their ex- 

 ministers in their Privy Council. The American Constitution is 

 indeed a written one, but there has grown up beside it a body of 

 authoritative precedents. The American executive bears more re- 

 semblance on the whole than does the English premier to a Ro- 

 man consul. He is freer in his action than the consul in that he 

 has no colleague to control him. A shrewd Frenchman, M. Raoul 

 Frary, has remarked that England is a republic with an hereditary 

 president, while the United States is a monarchy with an elective 

 king. The common element and the fundamental element in all three 

 constitutions is the exercise of governmental power by men selected 

 by party organizations. 



Great Britain, like Rome, has built up a world-empire; and like 

 Rome it has combined domestic liberty with external power by 

 limiting governmental authority at home and permitting it to act 

 freely abroad. The reserve powers of the British crown furnish 

 the constitutional historian with a modern instance of the imperium 

 militiae of the Roman consul. The viceroy or governor is the English 

 equivalent of the proconsul or propraetor; and colonial affairs are 

 controlled by the British Privy Council as provincial affairs were con- 

 trolled by the Roman Senate. As a matter of policy, Great Britain 



