« PreviousContinue »
the sense of Country is lost in the thought of that vast Empire. Still,-Empire or Country,—the vast organization was falling to pieces, and this was not a period in which its jurisprudence could be regarded as in a state other than of decline.
There can be little doubt, we think, of the substantial justice of the division which a modern jurist has suggested in the history of the Roman law. It is a fanciful division, and taken from the successive stages of our human life.
These fancies are not without their value in assisting the memory,- perhaps their only value,—for we should guard against being misled by the deceptive analogy into straining a metaphor too far. “ Its childhood," says Hugo of Göttingen, speaking of the Roman law,—“ Its childhood was from the origin of Rome to the time of the Twelve Tables. Its youth was from the time of the Twelve Tables to Cicero. Its manhood was from Cicero to Alexander Severus. And • then came its old age, from Alexander Severus to Justinian.”
For our acquaintance, however, with the Civil Law, in any of these periods, we are chiefly indebted to the collections made by order of Justinian. These we shall first mention in a sentence. They consist of the Code, which contains, in an abridged form, the Imperial Constitutions from the time of Hadrian; the PANDECTS, a digest or selection from the various works of the Roman jurisconsults; after the Pandects were compiled, but before they were issued to the public, the INSTITUTES were drawn up; a work which states, in very concise, and for the most part in very clear language, the doctrines of the Roman law. A revised edition of the Code, that which we now possess, was drawn up by Justinian's orders in six years after the first. From the first we have occasional extracts in the Institutes, which do not appear in the second. This, the second edition,—“ Codex repetitæ Prælectionis,”—the Pandects, the Institutes, sixteen
Edicts, and one hundred and sixteen Novellæ, or Rescripts, issued after the publication of the works we have mentioned, form what is called the “ Corpus Juris Civilis."
The peculiar circumstances of Rome, with its ancient laws, framed for a small community, written in a languege that had become antiquated, and incumbered, in their practical application, with forms understood by few,—with numbers too of that small community having no rights whatever capable of being enforced, except in the name and by the means of others,-created a body of men of high rank, many of them of great wealth and of abundant leisure, who made the study of the laws the business of their lives; men, for the most part, wholly distinct from the class occupied in the bustle of forensic business. The youth and manhood of every Roman was past in the public service in one form or another; and, youth and manhood thus past, it was impossible that age should be suffered to rust out in idleness. There were, in the better days of the Republic at least, active habits, which found delight in the indulgence of natural and cheerful tastes. In the Roman poets there are everywhere proofs of the enjoyment of country life,—" divini gloria ruris.” I speak not of passages of formal description, but of those fragments of picture, exhibited in single happy words, which prove how lively and how true their feeling of natural beauty was. In Pliny and in Cicero we have descriptions of the villas in which they were fond of living. Numbers of these men made the Civil Law their study. It was the subject of their constant thought and constant conversations. The scenery amid which Cieero represents imagined speakers of his own day, and of days before his own, discussing subjects of philosophy or rhetoric, or of oratory, is little else than a picture of the very scenes taken on the spot, where they conversed pretty much as they are described as conversing. The dialogues themselves have very much the air of recollected conversations. Amid such scenes the
Roman nobility, “ amplissimus quisque et clarissimus vir," meditated and read, and communed with each other; and when the season of business brought them to Rome, they were consulted, in every case of doubt, on the subject of their constant speculations. With our habits, it is not easy to imagine how the opinions of private men could be clothed with the kind of authority which their's possessed; but here was a people satisfied to conduct their business,—as it was at one time conducted in this country, and is still in many parts of Europe,—by laws rather than by legislation. There was among the Romans a superstitious regard for their early laws, and for the forms required by these laws to give their acts legal validity. Even with our unresting machinery of legislation there is the necessity of a continuing and almost contemporaneous exposition of every law that is enacted, in decisions of Judges interpreting its language, not without reference to the usages, and habits, and feelings of the society, whose sovereign will is expressed in their laws. That it would be wrong to call this judge-made law,—as a popular phrase, which involves, and well embodies, and happily exemplifies a very general mistake, calls it, -is exhibited by the fact, that any mistake of the judicial interpreter is at once corrected on fuller consideration. The publicity of our administration of the laws calls instant attention to such mistake; and, as has been exceedingly well shown by Dr. Longfield* in a late lecture, the consequence to the whole community of any error compels its instant correction. It can scarcely prevail so as to cause material inconvenience even in a particular case. At worst the mistaken decision is overruled. If, as frequently happens, the language of legislation, which shares the fault of all human language, in being necessarily imperfect, has been also inaccurate, a new Act of the Legislature will remove,-perhaps only vary the difficulty. If, however, with us contemporaneous interpretation of our Acts of Parliament is almost indispensable, how much more necessary was some such assistance when the written laws were written in the fewest possible words, were of ancient date, were in antiquated language? If neither of the class of corrections which we have indicated occurs, and the exposition which the Judge has given of the law is quietly submitted to, it is scarcely possible to imagine stronger evidence to prove that the interpretation—the contemporaneous interpretation as it most often is—has been true to the meaning of the law; in other words, that the interpretation is the law. From whatever cause it may have arisen, the fact is certain, that there were in Rome a body of men who made the law their study,-educated, admired, revered for their learning, and of irreproachable integrity. In their severe logic they did not allow law to be called a science. With them it was ethics; it was philosophy. Their thought was not of an external coercive power, binding society together by a will which was not the will of him from whom obedience was exacted. Law, taught in the schools as science, affirms, and for certain purposes, and in certain respects, rightly asserts for herself a domain separate from that of ethics. But the position of the Roman jurisconsults was, you must remember, that of persons giving replies to those who consulted them on questions affecting conduct in the ordinary relations of life,-relations, every one of them influenced, as all our actions are, by the institutions and regulations of the municipal society of which we are citizens, or in which we live. The questions were not always, perhaps they were not often, questions of doubtful law, or of litigated rights. Even the extracts given by Justinian from the answers may show us that the questions were just as often about rules of conduct. In answering such inquiries, there could be nothing to lead them to consider the divisions and distinctions that occupy the jurists of a later day. The distinction between law and ethics, founded as it is on just grounds, and which we shall have occasion hereafter to examine, was one which, as far as the question of the conduct of the individual consulting the jurisperitus was concerned, it was natural and fitting that his instructor should not introduce; and accordingly, the division, though just, is scarcely adverted to in any of the “Responsa Prudentum,” in what are properly the books of the Roman law.
* Professor of Feudal and English Law in the University of Dublin.
In teaching a science, or in teaching any branch of learning as a science, we are forced on divisions and distinctions, which we sometimes find in the nature of things, more often in the nature of words which are substituted for things, and of which we are too apt to forget, that though through them alone we conduct our reasonings, their value is arbitrary and variable. We must not then expect from language a precision which it is impossible to find; at all events we must interpret all language by the purposes for which it was employed, and the answers of the jurisconsults, to persons seeking their advice, must be interpreted by the fact, that they were answers to persons requiring guidance and direction in conduct; and to divide the thought of law from that of duty could scarcely have been an honest object in such communications. No man has reflected seriously on any subject of human thought, still less on those subjects which regard the principle of obedience to law, who has not been compelled to think of our duty to others, the object of all law, as suggested and enforced by principles higher than it is convenient to refer to when we speak of human sanctions ; from which, however, no one could wish, and, did he wish, no one can dissever the thought of such sanctions, knowing them to be of divine appointment. “ They are ordained of God. The ruler beareth not the sword in vain. He is the