Page:Harvard Law Review Volume 32.djvu/407

MILITARY LAW — A STUDY IN COMPARATIVE LAW 371 Our problem, however, is not one of the content of military law but one of its form and its methods of growth. What ex- planation can we give of the origin of this alien intruder into our law? Why has miHtary law burned what the common law has adored, and why has it adored what the common law has burned? Why has military law, in its method of developnltiit, differed from the common law and agreed with the Roman law, on every point? The theory of direct borrowing has the same place in compar- ative law that Noah's Flood once had in geology. It is a first aid to all difl&culties, and, if our knowledge is sufficiently limited, it will explain all our troubles. Sometimes, moreover, it is the correct theory as tested by further investigation into the facts. Shall we invoke it here? It is an explanation that is obvious and simple, but it gives no aid to the solution of this puzzle. The stream of responsa had ceased to flow and the praetor's edict had become petrified some three centuries before Justinian's com- pilation and a thousand years before any influence upon English military law could have been exerted. Those who administered military law probably had no idea of the method by which Roman law had grown. At the -revival of the study of Roman law, the Digest was thought of rather as • Justinian's legislation than of a summing up in an enucleated form, of the result of centuries of gradual growth. Is this a case in which like causes have produced like results in different ages, separated in time by hundreds of years; and in different places, separated in space by hundreds of miles? In both cases we have an Aryan race of marked genius for law, and organized on a military basis; for Rome was a military state, and in England, miUtary law existed solely for the government of the army. In both cases we have the administration of a for- mal technical law and not the administration of popular custom in a tribal assembly. In both cases we have the administration of this technical formal law by a court which is not a perma- nent court, and which is not a technically trained body organized WiNTHROP, Military Law and Precedents, 2 ed., appendices I to XVT inclusive; in Grose, Military Antiquities Respecting a History of the English Army. Early codes are also given in whole or in substance in Clode, The Administration of Justice under Military and Martial Law.