第12章

We cannot doubt that the peculiarities which have been notedin the instrumentality by which the development of the Roman lawwas first effected, were the source of its characteristicexcellence, its early wealth in principles. The growth andexuberance of principle was fostered, in part, by the competitionamong the expositors of the law, an influence wholly unknownwhere there exists a Bench, the depositaries intrusted by king orcommonwealth with the prerogative of justice. But the chiefagency, no doubt, was the uncontrolled multiplication of casesfor legal decision. The state of facts which caused genuineperplexity to a country client was not a whit more entitled toform the basis of the jurisconsult's Response, or legal decision,than a set of hypothetical circumstances propounded by aningenious pupil. All combinations of fact were on precisely thesame footing, whether they were real or imaginary. It was nothingto the jurisconsult that his opinion was overruled for the momentby the magistrate who adjudicated on his client's case, unlessthat magistrate happened to rank above him in legal knowledge orthe esteem of his profession. I do not, indeed, mean it to beinferred that he would wholly omit to consider his client'sadvantage, for the client was in earlier times the great lawyer'sconstituent and at a later period his paymaster, but the mainroad to the rewards of ambition lay through the good opinion ofhis order, and it is obvious that under such a system as I havebeen describing this was much more likely to be secured byviewing each case as an illustration of a great principle, or anexemplification of a broad rule, than by merely shaping it for aninsulated forensic triumph. A still more powerful influence musthave been exercised by the want of any distinct check on thesuggestion or invention of possible questions. Where the data canbe multiplied at pleasure, the facilities for evolving a generalrule are immensely increased. As the law is administered amongourselves, the judge cannot travel out of the sets of factsexhibited before him or before his predecessors. Accordingly eachgroup of circumstances which is adjudicated upon receives, toemploy a Gallicism, a sort of consecration. It acquires certainqualities which distinguish it from every other case genuine orhypothetical. But at Rome, as I have attempted to explain, therewas nothing resembling a Bench or Chamber of judges; andtherefore no combination of facts possessed any particular valuemore than another. When a difficulty came for opinion before thejurisconsult, there was nothing to prevent a person endowed witha nice perception of analogy from at once proceeding to adduceand consider an entire class of supposed questions with which aparticular feature connected it. Whatever were the practicaladvice given to the client, the responsum treasured up in thenotebooks of listening pupils would doubtless contemplate thecircumstances as governed by a great principle, or included in asweeping rule. Nothing like this has ever been possible amongourselves, and it should be acknowledged that in many criticismspassed on the English law the manner in which it has beenenunciated seems to have been lost sight of. The hesitation ofour courts in declaring principles may be much more reasonablyattributed to the comparative scantiness of our precedents,voluminous as they appear to him who is acquainted with no othersystem, than to the temper of our judges. It is true that in thewealth of legal principle we are considerably poorer than severalmodern European nations. But they, it must be remembered, tookthe Roman jurisprudence for the foundation of their civilinstitutions. They built the debris of the Roman law into theirwalls; but in the materials and workmanship of the residue thereis not much which distinguishes it favourably from the structureerected by the English judicature.

The period of Roman freedom was the period during which thestamp of a distinctive character was impressed on the Romanjurisprudence; and through all the earlier part of it, it was bythe Responses of the jurisconsults that the development of thelaw was mainly carried on. But as we approach the fall of therepublic there are signs that the Responses are assuming a formwhich must have been fatal to their farther expansion. They arebecoming systematised and reduced into compendia. Q. MuciusScaevola, the Pontifex, is said to have published a manual of theentire Civil Law, and there are traces in the writings of Ciceroof growing disrelish for the old methods, as compared with themore active instruments of legal innovation. Other agencies hadin fact by this time been brought to bear on the law. The Edict,or annual proclamation of the Praetor, had risen into credit asthe principal engine of law reform, and L. Cornelius Sylla, bycausing to be enacted the great group of statutes called theLeges Corneliae, had shown what rapid and speedy improvements canbe effected by direct legislation. The final blow to theResponses was dealt by Augustus, who limited to a few leadingjurisconsults the right of giving binding opinions on casessubmitted to them, a change which, though it brings us nearer theideas of the modern world, must obviously have alteredfundamentally the characteristics of the legal profession and thenature of its influence on Roman law. At a later period anotherschool of jurisconsults arose, the great lights of jurisprudencefor all time. But Ulpian and Paulus, Gaius and Papinian, were notauthors of Responses. Their works were regular treatises onparticular departments of the law, more especially on thePraetor's Edict.

The Equity of the Romans and the Praetorian Edict by which itwas worked into their system, will be considered in the nextchapter. Of the Statute Law it is only necessary to say that itwas scanty during the republic, but became very voluminous underthe empire. In the youth and infancy of a nation it is a rarething for the legislature to be called into action for thegeneral reform of private law. The cry of the people is not forchange in the laws, which are usually valued above their realworth, but solely for their pure, complete, and easyadministration; and recourse to the legislative body is generallydirected to the removal of some great abuse, or the decision ofsome incurable quarrel between classes and dynasties. There seemsin the minds of the Romans to have been some association betweenthe enactment of a large body of statutes and the settlement ofsociety after a great civil commotion. Sylla signalised hisreconstitution of the republic by the Leges Corneliae; JuliusCaesar contemplated vast additions to the Statute Law. Augustuscaused to be passed the all-important group of Leges Juliae; andamong later emperors the most active promulgators ofconstitutions are princes who, like Constantine, have theconcerns of the world to readjust. The true period of RomanStatute Law does not begin till the establishment of the empire.

The enactments of the emperors, clothed at first in the pretenceof popular sanction, but afterwards emanating undisguisedly fromthe imperial prerogative, extend in increasing massiveness fromthe consolidation of Augustus's power to the publication of theCode of Justinian. It will be seen that even in the reign of thesecond emperor a considerable approximation is made to thatcondition of the law and that mode of administering it with whichwe are all familiar. A statute law and a limited board ofexpositors have risen into being; a permanent court of appeal anda collection of approved commentaries will very shortly be added;and thus we are brought close on the ideas of our own day.

Ancient Law

by Henry Maine