Page images
PDF
EPUB

minister of God; a revenger to execute wrath on him that doeth evil.” In a magnificent passage of Milton, where justice is executed on the haughty and rebellious spirit in whom the great poet has personified evil and crime, we are told, in language coloured by his recollection of the language of St. Paul, that

“ The sword
Of Michael, from the armory of God,
Was given him.”

The Roman jurists, in their sublime speculations on society,speculations eminently subtle at the same time that they were sublime; and let not this surprise you, as if there were a distinction in the nature of things between these different exercises of the mind,-beheld society as sustained by the one divine mind and thought-all human laws as transcripts of a law which man did not create. Society itself was, in their conception, man's natural state, for the natural state of any thing was, their philosophers taught, the state of that thing in its highest perfection; and yet of this fabric of society, independent of which man cannot be conceived as existing, and existing as man, every part is artificial. To rely on natural instinct for supporting the complicated framework of society, never occurred to these men. Their's was a truer philosophy. The artificial arrangements by which society, man's natural state, was bound together, could only be secured by laws,—as far as possible equal laws,-man's natural right. There is a passage in Cicero, in which he dwells on the pursuits of the Roman jurisconsult as the happiest and most dignified which could occupy the close of life, and speaks of his own wish for such retirement and such occupation. He quotes a passage from the poet Ennius in which kings and states are represented as consulting an oracle; and in the same way he describes the house of an

eminent jurist as visited by crowds seeking his advice and aid.

“Suarum rerum incerti quos ego meâ ope ex

Incertis certos, compotesque consilî

Dimitto, ut ne res temere tractent turbidas.” “ These are,” says Cicero, “ the words of the Pythian Apollo in the old poet; and similar,” he adds, “ to this is the assistance received from the jurisconsult.” “Est enim sine dubio domus jurisconsulti totius oraculum civitatis, testis est hujusce Quincti Mucii janua et vestibulum quod in ejus infirmissima valetudine affectâque jam ætate maxima quotidie frequentia civium ac summorum hominum splendore celebratur."*

The exposition of a written law has been called legislation,—legislation under the name of interpretation. If the written law be so obscure as to be with difficulty intelligible,-if it be in a language known to few except the interpreters, there is some truth in this language; and the complaint resolves itself, when there is no reason to doubt that the intention of the law is truly expressed, into this, that we are governed not by words but what words mean. But let such thoughts shape themselves into what language they may, the accusation, in reality, does come to this, that the interpreter's integrity of purpose is distrusted. He is regarded as trying to evade the force of language, judging but by his own present sense of what justice requires, and escaping as he best can the words of the written ordinance. I have already said what occurs to me in reply to this accusation in the form which it often assumes. The unchanged law should be rather the object of attack than the comment, which makes it in some degree answer more nearly the demands of advancing society. However this be, at Rome

• De Oratore, i. 45.

the interpreters, who were not, we have said, at first, clothed with any other authority than that which was given them by public opinion, in virtue of their supposed knowledge, seem to have been regarded as if they were, in truth, the legislators; and the “ Responsa Prudentum" for a while bore exclusively, and even in opposition to the written laws, the name of “ Jus Civile.” It is not easy to conceive the possibility of authority being thus gained for the opinions, however well-considered, of private men; but the probabili. ties are, that it at first arose out of the relation of patron and client, and that it was submitted to from convenience. These “responsa” were afterwards placed on a different footing, but the details of this we cannot enter into at present. In a different and a more curious way, such of the writings of the jurists, whether in their replies to cases laid before them, or in their published works, as are found in the Pandects, are given, by the fact of their being embodied in Justinian's work, the force of law. This, you will see, was giving the imperial authority, not to the works of the jurists, but to the extracts from them which Justinian's compilers adopted. All were placed by him on precisely the same level. “Omnibus," I quote Justinian's words, “ unum ordinem et dignitatem parem dedimus, nulli cuipiam majore quam cæteris data prærogativa." The authority in every case alike depending solely on the Imperial Constitution, he asks, can there be room for any distinction of greater or less? To endeavour to show that their views were misrepresented, or to cite the works themselves in explanation of the author's meaning—nay, to write any comment on the Digest or the Code, was to be guilty of forgery. He who does so is “ falsi et publicorum criminum indicatus et pænæ addictus.” If anything was doubtful, it was not to be cleared up by comparison of passage with passage, but the Emperor would himself interpret; meaning, of course, by rescript,

by a new law which might, and, if the experience of our times may give us any light, would require further interpretation. With Justinian's legislation we, however, at this moment, are only concerned so far as to guard against giving authority to the imperial compilations for anything like faithful quotation from the elder jurists. Justinian's Code may have done more for the falsification of the history of law than it has done for its own purpose of having an uni. form system co-extensive with the Empire. His own language is this,-1 translate and slightly abridge it :-“ Our respect for antiquity was such that we could not think of omitting the names of the old jurisconsults; we gave the names of each of them in the paragraphs adopted from them, making alterations wherever we thought them wrong, taking out sentences, putting in sentences, selecting what was best. In short, we have given our own authority to the selection, and let nobody dare to compare our book with the originals from which it is derived, for we have changed more passages than can be numbered, all for the better, even making considerable alterations in what had received the authority of law from former Imperial Constitutions. Whatever was self-contradictory in the passages we have given from the old jurists we have removed; all is now consistent, and is to be regarded altogether as our own. • Nomina quidem veteribus servavimus, legum autem veritatem nostram fecimus.?” For the purposes of a Code, this course, perhaps, was necessary; but we should remember, when we examine the passages of Ulpian or Paulus or Papinian for other purposes than knowing the precise state of the Roman law in the sixth century, the process which Justinian's extracts from them have undergone.

In the original constitution of Rome the business of legislation was thus conducted. No new law could be proposed except by the Magistrate; in the earliest days in

which there was anything like legislation, by the King: it was then debated in the Senate. If approved there, it was the subject of a senatusconsultum, and became law only on being approved by the whole assembled State. To understand what is meant by the whole assembled State, for I wish at this moment to avoid the words “ populus" and “ plebs,"—we are compelled to look to the constituent elements out of which the gigantic Empire grew. The more closely we examine the structure of society, the less shall we be disposed to ascribe much to identity of blood and of race. When Aristotle sought to resolve Society into its first elements, the domestic servant or slave was, he found, part of the thought of Family; and servitude was a relation which, arising from its advantages to both master and slave, was involved in the very notion of a household. Identity of blood might exist. The slave might be the son, but it was not a portion of the thought. The relation of master and servant, then, was, in his conception, one existing from the first; and this is a relation, to say the least, as likely to arise between persons of different race as between those of the same kindred. It is important that you should remember this, for it is of exceeding moment in our consideration of laws and of their binding force, that we should distinctly remember how entirely artificial in its composition Society is,—a fact, which I cannot but think too much forgotten by those who would speculate on those subjects.

Identity of race, then, would seem not to be the sole element of Family, even in its first and rudest form; and a plausible mistake, leading to a thousand fallacies is substituted for anything that we find in actual fact, or anything that an examination of probabilities suggested to those who were best acquainted with the history of men, and with the nature and disposition of man. If we take Aristotle for our guide we shall soon see it to be a mistake to think that the

« PreviousContinue »