ut on the Continent the Germans
abandoned it. The Roman law was always law more as we moderns think of
it; it was an _order_, addressed by the sovereign, or at least by a
political superior, to a subject or to a political inferior; addressed
in the form of definite writing, that is to say, a statute, and with a
sanction, that is to say, a penalty, a threat as to what the sovereign
will do if the subject does not obey. That is the universal notion
of Roman law, and it has so far affected certain English writers on
jurisprudence that I feel almost one should be warned against them.
Not that their side isn't arguable, but the weight of English history
seems the other way. Austin, for instance, was so much impressed with
the notion of law as an order from the sovereign to an inferior that
he practically, even when considering the English Constitution, adopts
that notion of law, and therefore arrives to some conclusions, as it
seems to me, unwarranted, and certainly omits to note a great many
things that would be noted had he kept clearly the Anglo-Saxon theory
of law in mind.

Now the Normans, mind you, had purely Roman law. While they were in
Normandy, being in France, they had imbibed or adopted Roman notions
of law, perhaps because they were then first civilized. They had lost
their old Saxon notions, if they had any, for they were, after all,
of the same _race_ as the Saxons. Nevertheless, when they conquered
England they brought just as much the notion of the Roman law into
England as if they had been Caesar's legions. And that fact must
always be borne in mind, and that led to centuries of conflict in the
making of English constitutional law. The first thing, of course, that
they tried to do, that the Norman kings tried to do, was to use law in
the Roman way; that is, to make the law themselves, from the king. For
that was another consequence of the Roman law, that not only was it an
order by the sovereign power, but that this sovereign power was not in
theory a legislature, as it is with us to-day, but the sovereign; in
France and the Continental countries laws were made in theory and in
practice by the king. So the Normans came over with the Roman notion,
in the first place, as to what law was, that it was a written, newly
made order of a sovereign, not a thing that had grown up and was part
of the lives and customs of the people, but a thing made out of hand
by the king; and, secondly, that it was made by the king