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speculation on the origin of all law; and in the effort to reconcile a narrow and insufficient body of rules, devised for a small society, with the laws rendered necessary by the wants of that increasing society, and its relations when it became the capital of the world, appears to have arisen the first conception of the system which, not only in its forms of proceeding, but in its effort, without violating written law, to administer substantial justice, has had its full development in our Courts of Equity.
What is called by the Romans man's natural law, is, we have seen, in the first institution of society, modified and controlled by the Civil Law; for the Civil Law of the Romans,—to which we give the distinctive name of the Civil Law,—was at first so called only by the subjects of Rome. “When we speak of the Civil Law," says Justinian," we mean that of the Romans, as, when the poet' is said, the Greeks mean Homer, the Romans Virgil; each nation has its own peculiar laws, and each calls its own the Civil Law.” There are, however, principles common to all,—the dictates, not of what he has before called natural law, but of man's reason exercised on the subject,—which he calls the Jus gentium, “ quasi quo jure omnes gentes utantur."
A few instances will, perhaps, be useful to illustrate what is meant. The instinct which unites the sexes is a primary law of nature. The institution of marriage, depending on that original law which it regulates and controls, is referred to the Jus gentium, while many of the legal effects, and often the very validity of marriage, will depend on the laws of a particular country. Self-defence is a natural right arising from an original instinct. The raising an army for the purpose must be referred to numbers in union exercising and regulating this natural right; and the fact whether a nation is at war or not will depend on certain formalities, declarations of war, or the like, which the Civil Law of a particular country may require. The thought of property in the same way, referred to primary instincts, is acknowledged and modified by the “ Jus gentium,” while each particular nation has its own regulations as to its security, its transfer, and its devolution.
This may be as good a moment as any other to warn the young law student of the danger of being misled by the alterations of language imperceptibly extending the signification of words applied first by a loose analogy to some subject not within the compass of their original meaning, and ultimately fixing them into something altogether new. This phrase of " jus gentium,” and “ jura gentium,” you will find used by Livy and by Cicero in meanings wholly different from that of Justinian; and Justinian's use of the word has in its turn yielded to the thought of International Law, the notion most often connected with the words in modern jurisprudence.
The elementary treatise of Justinian is professedly confined to the subject of private law, which he divides into “written" and " unwritten.” Of unwritten law he disposes in a sentence:-“Sine scripto jus venit quod usus approbavit; nunc diuturni mores consenu utentium legem imitantur.” In the phrase "written and unwritten law,” we have the same kind of ambiguity of which I have given you other instances. Much of what Justinian calls written law you will find elsewhere described as unwritten; but this will not mislead you. Some authors have chosen to describe the fixed institutes of a country as its written law, and all comment on it, and all judicial decision, however authenticated, as unwritten law. Γραφειν νομον was the language used in Sparta to express passing a law, which in the modern use of language would imply writing, and yet their laws were unwritten. In the Institutes the division into written and unwritten law regards all as written law (scriptum jus), except that which takes its rise in custom, a considerable part of the actual law of every
country. The compiler of the Institutes dwells on this distinction of written and unwritten law with more complacency than we think it would deserve, if the part which he refers to unwritten law was not greater than it would at first appear. The Institutes are confined to private law, and public law is expressly excluded from the work, public law being defined “ quod spectat ad statum rei Romanæ.” The passage from Ulpian, from which this paragraph in the Institutes is an extract, is fortunately preserved in the Pandects. It gives an extensive description of public law, which would not at first occur to one, in our days reading the sentence, which I have quoted from the Instistutes. “ Publicum jus,” says Ulpian, " in sacris, in sacerdotibus, in magistratibus consistit.” Now, in all these, particu. larly in whatever relates to the “ sacra," which, even when they were the domestic sacred rites of the smallest integer recognised by the State, were under the control of the pontifices, much must have been regulated by the customary law. Of unwritten law then, the nature of Justinian's subject excluding all that was to be classed with public law, whether written or unwritten, it is probable that the range was much wider than would appear at first sight; and that he is justified in a division which he adopts from elder jurists, a division which he regards as not inelegant, inasmuch as old tradition refers the original of the Roman laws to Greece, and as the laws of Athens were in writing, those of Sparta unwritten.
The written law, “ scriptum jus,” is divided into Lex, Plebiscitum, Senatusconsultum, Principum Placita, Magistratuum Edicta, Responsa Prudentum. In saying that the written law is divided into, or rather is derived from all these sources, Justinian is far from saying, as he too often is supposed to have said, that all have the same degree of authority. In fact, he himselfspeaksofsome—the Edicta Magistratuum
as having "non modicam juris auctoritatem.” With respect to the “ Responsa Prudentum,” which stood upon wholly different ground, a similar remark is to be made. The Senatusconsulta were not, till a late period of the Roman constitution, law, in the same sense as the Leges or Plebiscita; but at all times, in certain subjects within the circle of their administrative function, their proclamations had the force of law. A passage of Dionysius states the Senatusconsultum to have been in force for a year after it was published. This answers the character of a temporary proclamation rather than a law.
All these, however, are classed with what we emphatically and distinctively term laws, and not unreasonably, considering that the Latin word “jus” expressed a combination of thoughts comprehending more than we have united into any one word. Justinian has not defined the word “jus” in the Institutes, nor do I believe that any definition of it is to be found in his voluminous compilations. Descriptions and divisions enough you will find, from which its general meaning may be inferred, not actual definition; but of “ justice” his definition is “ the constant and perpetual desire of giving to every one that which is due to him.” I use for convenience Harris's English translation of the passage, which is not good, but for which you will probably not find it easy to substitute one more accurate. The Latin is “ Justitia est constans et perpetua voluntas jus suum cuique tribuendi ;” and we find soon after “ Juris præcepta sunt hæc, honeste vivere, alterum non lædere, suum cuique tribuere.” The unwritten law of custom, the usages of society, are in his thought a part of this law. The written laws, from whatever source derived, and of however unequal authority, constitute another part, and if we find some difficulty in assenting to a division and definition, which would, no doubt, be inaccurate, if the meaning were what our use of the word “ laws" first suggests, we have another question to ask, indeed the only one: Is there anything inaccurate or misleading in the description or di. vision, when our thoughts are directed to what the Romans called “ Jus Civile”? We limit the meaning of our author, by adjusting it, unconsciously, or in the kind of half-consciousness which we give to things which make no impressive demand on our attention,—to the words, the sounds we might rather say, of another language, and then we say that the division is illogical.
The extent of authority, however, of each of these sources of law, it will be necessary for us to examine; and to render the subject intelligible, we are absolutely required to take some view of the very extraordinary people whose image is still stamped in enduring characters on all society. The history of the Roman arms and the Roman laws is the history, if not of civilization in the highest sense of the word, as it has been anticipated in prophetic vision, and as it will at some future day reveal itself in human society, yet assuredly of civilization-European civilization, the highest form that man has yet attained. On it the image and superscription of Cæsar is distinctly to be read. It is not only that the languages and the manners of every land which the Romans possessed bear ineffaceable records of that mighty people, but, as has been distinctly exhibited by modern jurists, there was no period in the history of the great nations of Europe in which the principles of Roman law, and its very forms, did not survive. When we say that they survived, we do not mean that they survived without change. They did, however, survive, as the Roman language may be said to survive in many of the modern languages of Europe. No one sentence can be formed that does not seem as if its words were but fragments from the ruins of that noble language which the Romans made the language of legislation. Not one law can be cited affecting society to any great ex