PROBLEMS OF ROMAN LEGAL HISTORY 319 



has conceded, as did Rome in the republican and early imperial 

 periods, a large measure of local self-government to its subjects 

 beyond the seas. In both empires we find the war power and the 

 control of diplomatic relations in the hands of the home government, 

 the ordinary administration decentralized and left in the hands of 

 local authorities. 



The United States, after rounding out its continental domain, has 

 recently acquired possessions beyond the seas. In dealing with them 

 it is somewhat embarrassed by the absence from its written con- 

 stitution of indefinite and general governmental power power 

 corresponding to the Roman imperium militiae or to the residuary 

 authority of the British crown. This difficulty was felt a century ago, 

 when the process of continental expansion was beginning; and each 

 successive exigency has been met, and is being met, by the develop- 

 ment in our unwritten constitution of the war powers of the Amer- 

 ican president. In the administration of its earlier continental 

 acquisitions, the United States, following the example of Rome 

 and of Great Britain, encouraged the development of local self- 

 government ; and it is following the same policy in its new insular . 

 dependencies. 



In the expansion of Great Britain and of the United States, as in 

 the expansion of Rome, the fact of central interest is the upbuilding 

 of empire by a free people; and in the English and American empires 

 if the insular dependencies of the United States are to be dignified 

 with so high-sounding a title as empire the fundamental problem 

 is the same which confronted the statesmen of Republican Rome, 

 namely, the reconciliation of empire with liberty. 



One of the devices of Roman public law for limiting governmental 

 power at home was an elaborate system of checks and balances. 

 The power of every official was limited in its practical exercise by 

 the independent and possibly opposing powers of other officials. 

 In the hierarchy of superior and inferior officials which constitutes 

 the administrative system of the modern European state, no such 

 checks as these exist; but they are familiar to the English public 

 lawyer, and they have been greatly multiplied in American con- 

 stitutional law. In the place of administrative control of the inferior 

 by the superior, which is so highly developed in modern European 

 law, the English and American law, like the Roman, has developed 

 control through the ordinary courts. When, for example, a Roman 

 aedile destroyed merchandise which obstructed the public highway, 

 the legitimacy of his action was tested at Rome, not by appeal to 

 the consul, but by an action to recover damages for illegal destruc- 

 tion of property, just as a similar exercise of police power would be 

 tested in Great Britain or in the United States. 



It may finally be noted that contemporary political conditions in 



