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chapter 9: The Roman Creation of Modern Law - John Maxcy Zane, The Story of the Law 
The Story of Law, 2nd ed., Introduction by James M. Beck. New Foreword, Annotations, and Bibliographies by Charles J. Reid, Jr. (Indianapolis: Liberty Fund 1998).
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The Roman Creation of Modern Law
The modern world is indebted to Rome for its classification, general theory, and method of applying the law. It is impossible to conceive what our legal system would be had not the Roman jurists labored for centuries upon the general principles and particular rules that gradually created the finished law of Rome. When the Western Roman Empire was overthrown by hordes of savages, who were incapable of either applying the Roman law or comprehending the situations to which it was applicable, civilization went into an eclipse that did not pass from the earth until barbarous usages became slowly absorbed into the reviving Roman law. That law came back to Europe as the written law and furnished a common law for Italy, France, and Spain and at last for Germany. Just as the ancient temples and public buildings of Rome provided a storehouse of building material for later buildings, so the Roman law was an unfailing treasure house of legal reasoning and principles for the modern world. Modern European law and even the English law in its substance and deductive methods was built of Roman materials.
The Romans as a race had a special genius for law, but it required ages for that genius fully to develop, and almost a thousand years for Rome to acquire the wealth of legal experience that was needed to produce such jurists as Gaius, Pomponius, Scaevola, Papinian, Paul, Ulpian, and Modestinus, not to mention a host of others, some of whom are known and still more are unknown. If it be true, as one of our great publicists, Webster, has said, that whoever labors upon the Temple of Justice “with usefulness and distinction, whoever clears its foundations, strengthens its pillars, adorns its entablatures or contributes to raise its august dome still higher in the skies, connects himself in name and fame with that which is and must be as durable as the frame of human society”; it follows that the names of those who gave their lives to the fabric of Roman jurisprudence are entitled to a renown as enduring as our present civilization. To them the Romans of to-day in their Palace of Justice have given a proper and an artistic recognition by a collection of statues of the great makers of the civil law. It is related that the three greatest among them, Papinian, Paul, and Ulpian, once sat together as a court at Eboracum, now the city of York, when Britain was a happy and flourishing Roman province.
That court brings vividly to mind the vicissitudes of the law, for not a long period after that court was sitting at York, the refined and enlightened jurisprudence of a Roman province was replaced for seven hundred years by the uncouth customs of brutal Saxons and piratical Danes. When, in the twelfth century of this era, the Norman lawyers of Henry II began to rear again in England a structure of civilized law, they did not even know that ages before them the greatest jurists in the world had been dispensing justice from London to the Tweed.
When we seek the essential elements of the Roman contribution to the growth of jurisprudence, we find them not only in the discovery and recognition of improved rules of law, but still more in the development of a milieu or an atmosphere of legal reasoning, wherein civilized jurisprudence could expand and adapt its rules to the expansion and multiplying of relations and duties arising from a social life growing more and more complicated. Had it not been that Rome gained a governing position and became the center of the world’s affairs, the development of Roman law would not have been possible.
We have seen in the past history of the law, that the knowledge of law was a possession of the priests, whether among the Celtic races, the Babylonians, or the Hebrews. The Greeks freed themselves from this bondage to the priests, but their political structure was such that they did not produce either an adequate tribunal for assuring a rule of law or a body of jurists who could create a general classification of the principles of law and of its particular rules. Nor did they have an order of advocates or practicing lawyers, who by the representation of clients in the courts, could do something toward the correct application of the law to actual controversies. Greece had its courts so modeled that a professional class of lawyers could not be developed, and the temper of the people and of the philosophers was, as we have seen, hostile to such a class.
The history of the law teaches that without a professional class of lawyers, a reign of law is impossible. With the priests the law is always secondary to what they esteem the interests of religion. But to lawyers the law comes first, and its interests are paramount. The reason is the same in each case. The priests live by religion, the lawyer lives by law. Each profession is characterized by its own peculiar type of thought and of mind, yet sometimes the same individual shows a talent in both lines, for, to name but one instance, it is plain that the Institutes of Calvin could not have been written by any one who had not received a legal training. As we shall see, the English law owes its beginnings to men who were educated as priests.
When we examine the legal development of Rome it is easy to find in her professional class the secret of the unexampled soundness of Roman law. But for such a class to have full scope it is necessary that there should be an adequate tribunal, and this sort of tribunal it was the greatness of the practical Roman genius to have developed. Acres of books constituting an enormous literature have been written in the Middle Ages and in modern times upon the ancient Roman law. Theoretical jurists, classical scholars, classical commentators, and glossators have done this work. The texts of the Roman law have been analyzed word by word with the utmost meticulosity, but to a modern lawyer, who is versed in the actual life of the law, who has been engaged in the application of the rules of law to the endlessly varying situations and changes in modern life, this vast literature of pedantic comment is repellent, for the practical spirit and genius of Roman law is not there. It was in all things a useful, everyday system. The lawyer who reads of it desires to see it in its daily operation as such a system. He can never hope to master the great mass of technical terms of the writers upon Roman law. The general reader would never feel that he had leisure or inclination to attempt to read even a summary of it, unless he should happen to be attracted by Gibbon’s famous chapter in his Decline and Fall, which is an extraordinary performance for one not a lawyer, but yet is in parts very misleading. Ingenious inferences upon the doctrine of possession, fine-spun theories of the nexal contract, search for the secret of Quiritarian ownership, researches as to the meaning of real contracts, discussions over things mancipi or nec mancipi or over stipulations or literal contracts are all very well for the humor of the scholar, but what an actual lawyer desires is some sense of the effect upon human life of that law in operation.
A German writer, Ihering, has ventured the fanciful picture that once, pondering a problem of Roman law, he proceeded to exorcise in clouds of cigar smoke the spirit of the jurist Gaius.1 Gaius, Ihering says, when summoned from “the vasty deep,” appeared in his physical body, and, strange to say, did not object to the appalling stench of a German cigar. He is described “as a strange figure of a man, tall, shriveled, slightly bow-legged, with freckled brow and the general air of a schoolmaster.” This is hopeless in its lack of insight. Gaius certainly was not, as Ihering pictures him, an underfed pedagogue, although he might have been a Syrian Greek. But this “strange figure” is all the learned German scholar got out of the interview. He was imposed upon by a false spirit. He should have seen no freckled pedant, but a fine, upstanding, eagle-faced leader in the law.
So it has been with the great law speeches of Roman advocates that remain. English legal history tells us how much of the value of the law depends upon the work of the advocate in the court room. But very noted classical scholars, commenting upon such speeches as Cicero’s, weary us in their dry-as-dust way, with complaints that ideas are repeated, that adjectives are multiplied, that the speeches, as they say, are tumid, while they cannot catch the stirring life of the occasion, the emphasis of repetition, the glow of the oratory, the roll of the periods, the overwhelming rush and thunder of the eloquence. Mommsen’s carping against Cicero is probably the most repulsive thing in historical writing.2 The whole effect, meaning, and power of the speeches pass over the heads of such people, who cannot be conceived as capable of any sort of forensic oratory.
A trial of an important case in the great days of the Republic was a struggle of legal giants. When Cicero, by his mere opening of the case against Verres, defended by Hortensius, the leader of the Roman bar, drove Verres out of the court room into lifelong banishment, the occasion was a great legal drama. In the days of the Empire, in the age of the Antonines, Pliny the Younger gives us a picture as vivid as that of the arraignment of Warren Hastings. An African governor is being prosecuted before the Senate for trampling upon the rights of African subjects. The Emperor Trajan is presiding over a great concourse of the Senate. Pliny and the historian Tacitus, his bosom friend, were prosecuting. Pliny spoke for five hours and we get a touch of the courtesy of the Emperor, who expressed the fear that Pliny was exerting himself beyond what his delicate health would permit. After Pliny’s opening speech the advocate for the defendant exerted all his talents in a very skillful and adroit defense. The prosecution was closed by Tacitus replying “in a strain of the most powerful eloquence and with a certain dignity, which distinguishes all of his speeches.”
This scene just quoted comes from a period of the Roman law, when it had almost reached its zenith. The full development of Roman law required from 753 B. C., the assumed date of the founding of Rome, to about 250 A. D., a period of a thousand years. Then followed an era of compiling until the Corpus Juris of Justinian was put together, beginning just before 537 A. D. The innumerable books of Roman law were thrown aside, lost and forgotten, until, after centuries of futile glossators and commentators, a giant like Cujas could reconstruct some of those lost treatises.3
Roman law arose in a modest way among a collection of village communities where small Aryan tribes which had wandered into Italy came together, about 750 B. C., for mutual protection and made a common religious center at Alba Longa and a common trading place where the Roman forum stands to-day. Upon the surrounding hills grew the city, and from them, as her throne of empire, Rome was to rule the world. These tribes had the usual Aryan primitive organization. They had the patriarchal family, tracing relationship solely in the male line. There was the usual inalienable land-holding of the family, which had grown out of the tribal holding. Each family was ruled by the father with despotic power of life and death over all the members of the household. This was the primitive institution that we saw among the Greeks and the Hebrews. These families were branches of larger kindreds uniting in still larger kindreds called gentes or clans, tracing back to a common ancestor. Each male member of the clan bore as his middle name that of the common ancestor.
When one looks at Roman patrician names, such as those of the two great commanders, Publius Cornelius Scipio and Lucius Cornelius Sulla, and that of the Catilinarian conspirator, Publius Cornelius Lentulus, he knows that they claim a common ancestor named Cornelius, who has given his name to the gens Cornelia, that that clan has at least three branches, one the kindred of the Scipiones, another the kindred of the Sullae, and a third the kindred of the Lentuli, and that each man is the head of a family or domus with some remnants of the father’s power over the household. The Roman had developed to a marked degree the worship of his ancestors. He kept their images in his hall. On state occasions those effigies were carried in procession. They were the household gods of his hearthstone and to them he offered sacrifice. In the days of Rome’s greatest power the Roman patrician patronized the sculptor’s art mainly that he might look upon the portrait statues and busts before which he daily paid homage to his fathers.
These gentile clans were united into tribes and the heads of the clans formed the governing body of the united tribes. They were the patricians who formed the governing body called the Senate. In early times a man was a Senator because he was a patrician by birth; in later days he was a patrician because he or his father was a Senator. Each clan had its horde of dependents called clients. They were probably the remains of a conquered race. The clients and other freemen formed the body called plebeians, who were the Roman people. The full designation of the social organization required both patricians and plebeians. It was shown by those initial letters borne on the standards of the legions and in use in many ways to-day in Rome, S.P.Q.R. (Senatus Populusque Romanus). It is almost a shock to find those initials masquerading on a street sign in modern Rome warning of some municipal work.
The patricians at first absorbed all the governmental as well as priestly offices and powers in the city-state. The tribes came to be headed by an elective king, but in time rulers of the Etruscan race subdued and governed as hereditary kings these Latin tribes for a long period. This is all there is to the story of the Roman kings, for even Livy, who told the story, no more believed in his Romulus, Numa Pompilius, Tullus Hostilius, or Tarquinius Priscus, than Virgil believed in his tales of the Trojan Aeneas as the ancestor of the Julian gens. The end of the Etruscan rule came when the last Tarquin was driven out. Two elective consuls became head of the state with all the powers of a king, but each having a veto on the other. This double-headed executive was probably borrowed from Sparta. The ruling class of patricians was alone eligible to fill the consular office and the Senate could not act in legislation except upon a bill or law proposed by a consul. Rome had also the primitive assembly of the tribes, common among the Aryans, that appeared in the institution called the comitia or assembly.
The Roman race had certain characteristics, an intensely conservative character, a natural steadiness, steadfastness and dignity, a profound patriotism, and readiness to sacrifice for the common society. They had that natural social talent so marked in the Anglo-Norman, which enables one class to compromise with another. They had a sort of native instinct for uniting in the presence of a common danger. At bottom they were a just race with a developed sense for justice and a fear of arbitrary power, which gradually hedged around all departments of the government with checks and balances that prevented any class from having its own headstrong way. The tribes absorbed neighboring tribes. When a Sabine family headed by Appius Claudius, or, to use the antique name, Attus Clausus, joined the Roman state, the Claudian family with its dependents numbered five thousand. These Claudii, especially the kindred of them called the Neros, became the very front of the patricians. The plebeian clients formed gentes or clans of their own. Thus the Marcelli, who afterwards were a great patrician family, were originally a plebeian family. The first emperor, Augustus, was in his paternal descent an Octavius of a plebeian gens, but through his grandmother, the sister of Caius Julius Caesar, and by the adoption of his granduncle Caesar, belonged to the gens Julia, which claimed the highest patrician descent.
The early history of Rome for legal purposes is the breaking up of the clan organization by the substitution of families and a struggle of the plebeians to obtain a share of the political power. Plebeians gained eligibility to the consulship and to the lower offices of quaestor and praetor through which a man must pass to become eligible to the consulship. They gained the concession that no citizen could be put to death without the vote of the general assembly, with the exception that dictatorial power removed this restriction. Plebeians gained officers of their own, called tribunes, and at last they obtained legislative power on the initiative of the tribunes. The tribunes were given a veto against senatorial action and each tribune had a veto on another tribune. There was, also, another sort of check. The Romans had a religious system of divination by augurs and soothsayers who declared the auspices favorable or unfavorable, and this sort of Mumbo Jumbo work in which no enlightened Roman believed, could stop political action. The general legislative body was the convocation of all citizens in the comitia to which the Senate could propose a law. The differences between the different forms of the comitia are not here important. There were decrees of the Senate called senatus consulta, resolutions of the plebs called plebiscita, and regularly passed laws of the assembly called leges. All of them created law, but, as will appear, the creation of the body of Roman law was by other means.
At first the laws were oral and knowledge of them until men learned to read and write was in the custody of the patricians; and, precisely as at Athens, the plebeians, as soon as they were able to read, demanded written laws so that all might know the law. The demand was for laws that were certain and definite, to which all had access. Decemvirs (ten men) were appointed to get together a body of law which was enacted in the Twelve Tables engraved on wood or brass and displayed in the Forum for all to read. There is a statement in Livy that commissioners were appointed to go to Greece and bring back the knowledge of their laws for the benefit of the state. Whether this be true or not, the Romans, long before they had any political clash with Greece, had a rather close knowledge of the Greek law through the Greeks of southern Italy. The parallels are too close to be the result of accident. The demand for written law was Greek in its origin. This is not at all strange. All social animals are necessarily very imitative, prone to follow as savages the customs of the tribe. Men, as they grew more enlightened, developed the tendency to imitate other peoples. This was pronounced among the Hebrews and according to their writings this failing brought endless woes upon the Jews. This imitative trait is shown no less in the way in which the use of polished stone weapons, of pottery, of bronze weapons, and at last of iron weapons spread among barbarians. It is just as marked in regard to institutions and laws. So powerful is it that one legal writer has found improvement in law to lie wholly in imitation. But the question is as to who instructed the race imitated. Progress and development were required to begin somewhere. The lever and fulcrum can accomplish wonders but the fulcrum must stand on something. Whatever the fact may be, the Roman was improving his primitive law as he was fighting his way to the headship of Italy.
Fortunately for Rome, the Gauls or Celts in their migrations descended upon Italy. They ruined the Etruscan state, so much so that all of northern Italy became Celtic and was called Cisalpine Gaul. The Gauls would have taken the Capitol itself, had not Rome been saved by the cackling of the sacred geese, which for once fulfilled a useful purpose. Rome, freed from the danger of Etruria, gradually fought its way to the control of all Italy. It was a lovely land. Even in her ruin Byron could sing of her “immaculate charm that cannot be defaced.” The Greeks had given this land the name of the Hesperides, “the golden Italy.” Cicero, Rome’s greatest advocate, was born at Arpinum, which still
In his speech on his return from exile, he apostrophized his native land: “Our Fatherland, Immortal Gods, my tongue can hardly tell my love and delight in her. This Italy of ours, how lovely she is, how renowned are her cities, how beautiful her varied landscapes, her fertile fields, her harvests; how magnificent is this city and its civilization, the nobility of this commonwealth and your dignity and majesty!”
After gaining Italy the Romans were compelled to contest the western Mediterranean with the Carthaginians. They won the long struggle of many years, destroyed Carthage, and gained Spain, Sicily, and northern Africa. Here the conservative Senate would have stopped, but the Macedonian power took issue with Rome, and Macedonia with Greece became a Roman province. The assaults of Mithridates from Asia Minor and of the Seleucid successors of Alexander from Syria forced Rome into Asia Minor and Syria. Afterwards Caesar conquered Gaul and annexed Egypt. At last the Roman Empire was complete.
In the meantime Rome had become the capital of the world. No longer was commerce confined to the highways of the sea. The great system of Roman roads tied the empire together. We see a picture of safe and easy travel and a vast commerce moving across the seas, which had been swept clear of pirates, and along thoroughfares, kept in constant policing and repair by local effort. Superb bridges (some of them remain to-day) spanned the great rivers not only in Italy but far out in Spain, in Gaul, or on the Danube. A class of great capitalists of the Equestrian order had been developed, for commercial pursuits were interdicted to Senators. Partnerships and corporations were numerous. All the legal instruments of commerce and of its speculative ventures existed. Carriers by land and sea were plentiful. The days of barter had long passed away. Money was the medium of exchange. Bankers and money changers lined the Forum. Land had become private property fully alienable by the owner, as it was among the Greeks, and the utmost freedom in willing property existed.
So far as the ownership of all kinds of property is concerned, private property and its alienability, as complete as they are to-day, had resulted from this great commercial expansion.
To understand how Roman law became a world system, we must conceive the whole civilized world as under the Roman sway ruled by Roman governors. England and France were wealthy provinces, Spain enjoyed a prosperity she has never again attained. Southern Germany and Austria proper were as well off as they are to-day. The Illyrian province, now a part of Jugo-Slavia, recruited the legions; the Balkan states were a great Roman province; in material well-being Greece, Macedonia, and Thrace were never so prosperous; Asia Minor and Syria were full of wealthy cities; Egypt up to the falls of the Nile was the granary of the world and Northern Africa fringed the Mediterranean with cities whose ruins, covered with sand or surrounded by hovels, are all that remain of so much prosperity and splendor.
Over this vast domain descended the blessings of the Roman peace. Imagine a world where for two hundred years in all this area there was no war, and none of the losses and devastation of war. The fighting with the savages on the borders of the Empire, protected by the legions, was hardly more to the Romans than were our border fights with the Indians. Italy itself was glad to feel the repose and stability of the Empire. The individual cases of prosecution under a Nero or a Domitian were little more thought of among the mass of the people than the prosecutions of trust magnates among us. In this sort of world, made up of so many different kinds of races, was built the fabric of Roman law, in order that it might be a general law applicable throughout all the Roman world.
The two engines that created the law were the Roman court with an adequate procedure, and the profession of lawyers made up of jurists and advocates. It is easy to describe in a general way the advance in law which resulted from an adequate tribunal for deciding legal controversies under the assistance and supervision of the professional class. The result was that in almost all the departments of law, as a competent lawyer knows it at this time, a solution for legal controversies can be found by means of either the principles or the particular rules of Roman jurisprudence. That solution would not differ except in rare cases from the solution which our courts would offer, while the main elements in our procedure can be traced directly back to the civil law, as we call the Roman law in distinction from our common law. We shall now describe this advance to highly civilized law.
When the laws at the demand of the plebeians had been put into a written form, they were called the law of the Twelve Tables, although, of course, the Twelve Tables had behind them a mass of customary law. In kingly times the king had been high priest, leader in war, and judge. After the kings were gone, the consuls had these powers. To relieve the consuls of judicial work an elective officer, called a praetor, was provided. Custom and statute were among the Greeks methods of creating law, but in Rome the judicial magistrate had the peculiar power not only of deciding the law but in accordance with an early statute, of announcing on what principles he would grant justice and the forms that he would use. In this way the praetors substituted new methods of pleading in place of the old primitive rules. These announced rules were binding upon the praetor himself and they, being adopted and added to by one successor after another, became a collection of law showing the principles upon which relief would be granted or refused, the method of proceeding and the legal formulae necessary to be used. This collection came to be called the Edict, supplementing both custom and statute. It was of the same character but much wider in extent than our court rules.
The law, however, that was applied to Roman citizens could not be applied to strangers, and another praetor, called the Peregrine or the strangers’ praetor, was provided for deciding causes arising between strangers, and between strangers and citizens.
At first among the Romans the priests gave guidance as to what were the customary laws and gave public consultations upon the law. These priests were patricians and belonged to the body presided over by the Pontifex Maximus, from whom the Pope in later times took his title. But after the Twelve Tables and the Edict had made the law public and secularized it, the patricians, who were not priests, still studied the law and men of learning in the law supplanted the priests, by giving consultations and drawing up the forms and by guiding and directing the legal formulae and the procedure. At first the patricians monopolized this legal profession. In course of time written expositions of the law began to appear and the professional class of legal advisers was in full operation. Almost all of the patricians felt it to be their duty to study the law on account of another peculiar situation at Rome which will now be explained.
Attached to every Roman clan, as we have seen, was a body of plebeians called the clients. It was the duty of the head of the clan as patron to represent these dependent clients. When the clans broke up and the family was substituted, the head of the family had his clients. By a natural process in the city with its intense political life, every man of character, birth, and standing gathered around him a body of clients. Persons of almost every condition became clients. People who sought the support of a powerful friend, the needy or ambitious, men who could be counted on at an election or mere parasites attached themselves to some patron. Sometimes aliens like Archias or subject cities or Italian municipalities sought a protector. The most powerful of all patrons came to be the skilled orator. A man like Cicero would have his close friends, others who were his companions or others who merely waited upon his public appearances. Thus grew up the order of advocates, whose services were gratuitously rendered to every friend and client. The services of the patron were not to be compensated. Laws existed against payment, but at last the laws against paying the advocates fell into disuse by a process which a cynic would pronounce the most natural thing in the world.
Theoretically the Roman advocate was a man of rank and property who, without reward, devoted his talents to the practice of advocacy in lawsuits for the benefit of his friends and clients. The career of an advocate was, outside of the army, the best road to honor and high office. This tradition of an unpaid advocacy continued until the days of the Empire. Pliny tells a tale of a certain advocate who had been hired as counsel for the city of Vicenza in its lawsuit over its right to maintain a public market.
The lawyer had made an appearance for which he had received two hundred and fifty dollars and he had also received one hundred and seventy-five dollars for a second appearance to be made. When the day of hearing came he was missing. He was cited before the Senate, and asked for its clemency on the ground that his friends had persuaded him not to appear on account of a certain influential Senator. The Senate was about to absolve him when the tribune arose with his veto. Pliny says that it was an eloquent and impressive remonstrance. He said that the profession had become venal, that advocates took money, sometimes even to betray their clients, and that they made a shameful trade of their profession. Instead of honor being their reward, as it used to be, the tribune asserted, they even took large and annual salaries. Then the tribune read the laws against fees to advocates.
This remonstrance in the Senate stirred up the city. The judges began to enforce the law. The criminal judge announced that every party appearing in his court should take an oath that he had not paid or promised his advocate a fee. After the case was over a party was permitted to pay his advocate a gratuity not exceeding four hundred dollars. Many of the lawyers complained bitterly of these obsolete laws. But such is the effect of tradition and of the Roman law that to-day in France an advocate cannot sue for a fee nor in England can a barrister maintain such an action.
The jurisconsults, however, only advised and counseled. Finally under Augustus they became patented counsel and filled a public office. They, as Cicero said, practiced the art of the good and equal. The praetors simply took what the jurisconsults gave them as law. The greater part of the Roman law was wholly customary. It did not exist in the form of statutes and consequently the jurisconsults were left free to make the law so that it would become ready to meet the expanding life of Rome. Cicero’s book “On the Laws” has not been preserved. The fourth book has been lost. It dealt with the judicial tribunals. If we could have Cicero’s exposition of the Roman courts as they were in his day, we would see the Roman law at a time when it was first entering upon its period of great expansion, before the old and original form of the courts had been lost.
The praetor of Rome who judged cases for the citizens was supplanted, as stated above, by the praetor for the strangers (praetor peregrinus). To these strangers the Roman law had no application. It had a rigid, formalistic kind of procedure wholly inapplicable to cases arising among foreigners. The praetor peregrinus naturally tried to find those rules of law which would be suitable to foreigners and by the aid of the jurisconsults found those rules which were accepted among most of the nations under the Roman sway. This action of the foreign praetor reacted upon the praetor for the Romans and it was perceived that the narrow and rigid rules of the Roman city law must be remodeled to suit the sentiments of right and justice among civilized men generally. The Roman praetors were practical men; they had no more use for metaphysics than the modern English lawyer has had for that science. They were not muddled by any conception of a natural law of reason, but both praetors and jurisconsults saw that they must strive to make the law conform as nearly as possible to the developed ideas of right and justice among all classes of men growing more and more civilized.
As it has been stated in an earlier chapter, justice among men requires that the same rule shall be applied to all men in a similar situation. Justice is not primarily concerned with the rightness or wrongness of the actual rule. That is to be determined by right as found in general notions of public utility. The Greeks were continually getting befogged between justice and right and this is the fault of all the metaphysical cast of law. Men are satisfied generally with the justice of a rule if it applies to all alike. The rules of law, as Roman experience proves, are bound to respond sooner or later to the generally diffused ideas of rightfulness and especially the rules are expected to be consonant with ordinarily accepted ideas of public utility, for, as Horace says in his Satires, utility is almost the mother of law and equity and laws were devised through fear of injustice.
The jurisconsults, therefore, applied themselves to find the underlying principle that would make a general rule and at the same time be consonant with right. These general rules the jurisconsults applied by taking a particular case and making a careful analysis of it so as to bring it under a general rule of law by means of analogy, extending the rule on the grounds of utility and social expediency. This is the method of judges to-day, proceeding on the analogies of prior established rules as shown in published decisions. This method at Rome brought for the first time into the world what is called the legal cast of mind, the resolving of a particular case in accordance with a general rule that would thus satisfy the demands of justice and at the same time be suited to the sentiments of the rightful and the ethical. When this sort of solution was made it was called “elegant” and this is why in the first English law book, called Glanville, the strange phrase occurs regarding an ordinance devised under Henry II that it was “elegantly” inserted into the law.
These solutions of the jurisconsults were collected and published as responsa, or sententiae or regulae, being answers or decisions or rules in particular cases. They were digested under proper heads and the law was classified in regard to matters as they came up in the practice. The literature of this law, interpreting the customary law as well as the statutes, grew continually from century to century, so that Pomponius could say that the true civil law consisted wholly of the interpretation of the learned lawyers. The only restriction was that no customary law could derogate from a specific statute, just as in our law to-day it is settled that no custom can be pleaded that is contrary to the law itself. Thus grew up in Roman law the distinction between jus (law in general) and lex, which was law that depended upon a statute.
At the same time the law laid down by the peregrine praetor for his methods of trial was expanding. He applied the rules of law as between foreigners, and between Romans and foreigners. The Hebrews’ idea, as we have seen, was to give the stranger the benefit of the home law. It did not occur to them that it was not a great advance to let the stranger have the benefit of the home law. The Roman, however, went further. He had the good sense to see that his law was obsolete. He saw that for foreigners the rules to be applied must be those that were of general application, and this law he called the jus gentium, the law of nations, far broader and more liberal in its terms. At last these bodies of law all coalesced into a set of rules where the jus gentium supplanted altogether the strict law of the Romans and the Roman law had become a world system, applicable throughout the Roman Empire, where Roman governors and officials applied and enforced it.
The original system was simplified from its primitive character into a plain, straightforward body of law. Its procedure was rationalized. The litigant stated his case and asked the magistrate to authorize a suit. If there was no formula in the books, the magistrate would devise one. The defendant was called in and he must respond to the case stated by the plaintiff. If he could not deny the plaintiff’s right the plaintiff took judgment. If he did deny it he made a defense by answer, but if he pleaded some countervailing right in himself the defense was called an exception. These matters are of importance because they dictated the English practice at the common law and they made the English system of pleading. Thereupon the praetor, in a written document, stated the issue, and upon that issue or points in dispute the matter went to a single judge or to arbiters, one or more, to be decided on the testimony of witnesses, documentary evidence, or admissions or other proof. The primitive device in Greek law that the plaintiff must recover what he claimed and no less was done away with and if it was a question of damages, the judge assessed them.
A sketch of the private law among the Romans will be given in the next chapter in connection with the compilation made under the Emperor Justinian. Here it is sufficient to say that in the time of the Republic the Roman private law had still far to go before it became a world system.
It was in criminal law that the Republic, like most democracies or attempts at democracy, fell short. In a criminal court there was a large body of jurors. The jurors were often bribed, just as the voters at an election of consuls or tribunes were bribed. Laws against bribery were multiplied but they did little good. One of Cicero’s great speeches was in the case of Muraena, prosecuted for bribery at a consular election. Cicero was for the defendant and his defense is a curious conglomeration of very fine speaking but quite irrelevant matters. The jurors were intelligent enough, for otherwise ridicule of the Stoic doctrines of Cato, the prosecutor, would have been impossible. The famous prosecution of Clodius was notorious. The story that is told of this trial shows that the public was much incensed at the acquittal of Clodius. The jurors required an armed guard in order to get home in safety. Some one suggested that they were afraid of being held up and robbed of the bribe money that had been received. The use of bands of thugs at elections, such as officiated at Rome, is not unknown among us. Nor are instances wanting of bribed jurors or bribed electors in our highly advanced administration of justice.
One of these popular courts remained from a time that cannot be discovered. It was concerned with many civil matters, but its most important jurisdiction was in testamentary disputes. It was called the Centumviral or “Hundred Men Court.” It was probably borrowed from the popular courts of the Greeks. It was a favorite court for the training of young advocates. Pliny, the lawyer, states that, when he was a young man, he appeared often in the Hundred Men Court.
The business there [he says] is more fatiguing than pleasant. The cases are mostly trifling and inconsiderable. Rarely is there one worth speaking in, either from the importance of the question or from the rank of the parties. There are few advocates there I take any pleasure in working with. The rest, a lot of imprudent young fellows, many of whom we know nothing about, come here to gain practice in speaking and conduct themselves with such forwardness and such an utter want of deference, that my friend Attilius put it exactly when he said, “Boys set out at the bar with cases in the Hundred Court, just as they do at school with Homer,” meaning that they begin with what they ought to end. But in former times, so my elders tell me, no youth even of the best families was allowed in court unless introduced by some person of consular dignity. As things are now all distinctions are leveled and the present young generation, instead of waiting to be introduced, break in of their own accord. The audience at their heels is worthy of such orators. It is a low rabble of hired mercenaries supplied by contract. They get together in the middle of the court, where the dole is dealt out openly to them. This dirty business increases every day. Only yesterday two of my household were paid fifty cents apiece to cheer somebody or other. This is what the higher eloquence goes for. The leader of the gang stands up and signals for applause; most of the thick-headed fellows know nothing about what is said and must have a signal. If you hear cheering in a court you know that the one who gets the most applause deserves it the least. Licinius began this by asking his friends to come and hear him. My tutor Quintilian told me that the great lawyer Domitius Afer was once speaking in his usual slow and impressive way, when he heard near him in another court a great applauding. He stopped until the noise ceased. He began again and was interrupted a second and a third time. He asked then, “Who is speaking.” “Licinius,” he was told, upon which he broke off his speech, saying, “Eloquence is no more.” But then it had simply begun to decline; now it is almost extinct. I stay in the court because of my years and the interests of my friends, as I fear they would think I stayed out to avoid work rather than these indecencies, but I am effecting a gradual retreat.
Pliny tells of one of his cases in the Hundred Court. To explain it let it be understood that a Roman could will his property as he pleased, but a proceeding could be brought to set aside the will in the Hundred Court on the ground of undue influence or on the ground that it was wanting in natural duty. The case gives one an insight into the art of advocacy at Rome.
Pliny’s client was a daughter suing her stepmother for her patrimony. The father of Pliny’s client, an old man, seized with “a love fit at fourscore,” had brought home a stepmother. The love fit was fatal, for the old man was dead after eleven days of the malady, but the stepmother, like a modern “gold-digger,” bade fair to make way with the old man’s estate under a will which he had made. Pliny’s client, “a lady ennobled not only by birth, but by marriage to a husband of praetorian rank,” was compelled to sue the stepmother for her patrimony. Friends innumerable attended on both sides. The benches were thronged and even the galleries were filled. Around in all the available space stood spectators, men and women who could hear little, craning their necks to see—fathers, daughters, and stepmothers, all warmly interested.
The daughter won her case and we may pardon Pliny, flushed with victory, for writing to a friend in this strain: “I send you my speech. Take it up as the Cyclops took up the shining arms of Aeneas. I could not shorten it. Notice the abundance of the topics treated, the careful order in which the points are stated, and the little narratives interspersed to give it an air of novelty. I may say privately to you that there is a great warmth and a sublimity in parts of it, but I keep those parts woven in with close reasoning. I had to bring in dry computations, descending from the orator to the accountant. Sometimes I gave free rein to my indignation and my compassion and I was borne along like a vessel before every varying gust. In a word, my friends say that this is my Oration on the Crown.” This comparison to the masterpiece of Demosthenes is rather strong, but there is to the most cold-blooded of lawyers a solid satisfaction in winning a difficult case that will excuse some excess of enthusiasm. But even after Pliny, a hundred years more was needed for Roman law to attain under Papinian and Ulpian its highest level in those great jurisconsults.
The finest speech of eulogy in the history of the bar is that which was made by Cicero upon his friend Sulpicius, “the Roman friend of Rome’s least mortal mind.” Sulpicius was an exceedingly learned jurisconsult. He died in the public service upon an embassy on behalf of the Senate to Mark Antony. In this speech, called Cicero’s Ninth Philippic, is a sentence which describes exactly but in an almost untranslatable way the function of the Roman jurisconsult. Cicero says that Sulpicius was not less a master of law than of justice (non minus juris consultus quam justitiae). This is the true breed of lawyer, striving always to be in command of all the learning of the law, but striving no less earnestly to make the law fit the equality of justice and the ethical demand of righteousness. These Roman advocates and jurisconsults must always be to a lawyer a subject of intense interest. Two of them have left collections of letters. No one can read these letters of Cicero and Pliny without knowing that this was a world in which tolerant, kindly gentlemen abounded. It is the tone of men who are merciful, just, and humane in the exercise of power. Even that prodigious prevaricator or retailer of baseless scandal, Suetonius, cannot obscure the Roman gentlemen. The historian Merivale says of Pliny that no other of the ancients comes so near to our conception of a gentleman in mind, breeding, and position. Something regarding him may serve to bring before us the life of a Roman lawyer.4
Pliny’s wealth gave him the setting for a life of cultivation. He enjoyed a great ancestral estate on Lake Como with two splendid villas. Men to-day can point out the peculiarly intermittent spring that Pliny describes. He had another large estate in Tuscany at the foot of the Apennines with a lovely outlook described in one of his most charming letters. He had still another estate at Tifernum, “green Tifernum, the hill of vines,” and suburban villas at Tivoli, at Praeneste, and at Tusculum, with a winter home on the ocean. Here Pliny had a splendid library. Libraries were common among the Romans, and Cicero tells of his visiting the villas of friends to consult books, when he was writing his treatises.
Pliny is defending his friend Bassus, who had been governor of Bithynia. Bessus instructs his lawyer to open the defense by representing the consideration due to illustrious birth and public services, how once before he had been wrongly prosecuted and triumphantly acquitted, how now his accusers were professional informers, making money by their trade; but on the main point to show that all his actions had been just and that he deserved not only an acquittal, but commendation. The real difficulty, says Pliny, was that, in the simplicity of his heart, Bassus, who had been there before as assistant governor and had many friends, was so indiscreet as to have exchanged presents with friends upon his birthday. The laws expressly forbade the receiving of presents by a governor. “Now what should I do?” says Pliny. “If I denied the fact, it was notorious, Bassus had openly stated it even to the Emperor. If I appealed to the clemency of the court, I would ruin my client at once by acknowledging that he had done wrong. If I justified an act knowing it to be illegal, I would injure my own character as a citizen and would not help him. So I hit upon the middle course of contending that the Senate in its plenary power as a court could hold that the acts, while within the rigid letter of the law, were not within its spirit, and such is the law.” On this theory he made his defense.
Each side was given six hours, and Bassus asked Pliny to speak five hours and his associate to speak one. Pliny continues: “When I had spoken three hours and a half night came on. I had, it seemed to me, made a good impression and I did not want to resume next morning, for I was afraid I could not again arouse the interest. A speech is carried along by its continued flow, it keeps up its own fire, but a remission allows the audience to get cold. It is like a torch kept brightly glowing by continuous motion, but if it goes out it is hard to rekindle. But Bassus implored me to go on in the morning, so I did and found the Senate fresh and lively.” Bassus was acquitted, and when, says Pliny, the fine old man, broken by age and anxiety, came out of the Senate House, the crowd, remembering how he had been banished by Domitian, a name never mentioned except in connection with some undeserved misfortune, greeted him with cheering and acclamations.
Pliny’s life, like that of the other leading Roman advocates, was a laborious one of working hard at the profession because he loved it. When he was a judge and minister of finance, his time was taken up by hearing cases, passing upon pleadings, and making up the public accounts. While practising law, his days were occupied with drawing wills, with consultations, or pleading in the courts. Little time had he to go to his villas in the north; while at Rome he attends in the city all day and at evening sets out for his villa on the sea or at Tusculum or Tivoli, returning in the morning. He regrets that his time is so much taken up with trivial matters. He writes to a friend up at Como: “What are you doing? Reading, hunting, fishing, I suppose, while I am restless and impatient at my not being able as well to enjoy what I long for. Shall I ever break away from these ties of business? Never, I fear; fresh employment keeps adding itself to the old. Such an endless train of business is daily pressing upon me and riveting my chains tighter.”
He loved the place where he was born. “How is that sweet Como of ours looking? What of my most enticing of villas, the portico where it is perpetual spring, that shadiest of plane-tree walks, the crystal canal that winds along its flowery banks, and the Lake lying below so lovely to the view?” Still that glittering Lake, lovely under the brilliance of the Italian sky, spreads her enchantments. “What have you to tell me,” he continues, “of that soft yet firm running track, the sunny bathroom, those large dining rooms, and the small one, and all those elegant apartments for repose?” He gives us a lovely picture of a friend, a high-class Roman who had retired, a man who had commanded armies and held great offices. Everything about him was composed and dignified, a serene life full of ease and repose. “You could imagine you were listening to some worthy of the ancient days, what deeds, what men, what serene wisdom you hear about. He composes most elegant lyrics, Greek and Latin, so wonderfully sweet and gay they are, and his own unsullied life lends them additional charm.” His splendid entertainments, his grave politeness and urbanity are painted for us. “This is the sort of life,” says Pliny, “I am going to have when I arrive at those years which shall justify me in retiring from active life. Meanwhile I am worried with a thousand affairs, but my old friend, too, for many years discharged his professional duties, held magistracies, governed provinces, and by hard toil earned his repose.” This time, alas, never came for Pliny, but he comforts himself with the thought that to be engaged in the public service, to hear and determine cases, to explain the laws, and to administer justice, is a part and the noblest part of philosophy, since it is reducing to practice what her professors ought to teach in speculation.
But freedom to Pliny did not mean anything more than a government regulated by law, and he was certainly not a leveler. The Romans of his day were free men in his eyes and it is true that the goodness of the private law redeems many a defect in the government of the Empire. Writing to a provincial governor, Pliny recommends him to so conduct himself as to preserve the proper distinctions of rank and dignity; when they are once confounded and all thrown upon a level, nothing can be more unequal than that kind of equality. He tells of an old friend of his who had suffered from his early years from rheumatic gout or arthritis which, first attacking his feet, had in the passing years affected the whole body. The old man was racked with pain and said: “I suppose you wonder why I endure all these miseries. I would not, if it were not that I have the hope that I shall outlive, if only for one day, that villain Domitian.” The Emperor Domitian was assassinated and Pliny tells how then this old Roman, who could now die a free and unenslaved man, rejecting the prayers of his family and friends, calmly committed suicide. Even the Emperor Nerva was not too much of a ruler to listen to the truth. There is a story of Pliny dining with Nerva; placed next to the Emperor was Veiento, who had been guilty of cruel and base conduct under Domitian. The conversation turned on a certain blind but remorseless informer, who was then dead. “Where,” asked Nerva, “would he be at the present time, if he were alive?” A Roman at the table, looking hard at Veiento, replied: “He would probably be dining with us.”
Pliny as an advocate would not be complete without a reference to the best letter in the whole collection, which describes the scene of terror at the great eruption of Vesuvius, when Pompeii and Herculaneum were overwhelmed. Pliny, then a boy of seventeen, and his mother were with his uncle, the Elder Pliny, who was in command of the Roman fleet at the great naval base at Misenum on the Bay of Naples. A strange black cloud appeared over the mountain. An imploring letter from the other side of the Bay came to the Admiral from a lady whose villa lay at the foot of Vesuvius. The brave old Roman manned his galleys and steered straight across the bay for the mountain, from which he never returned. The earthquake was rocking the land, the ocean was rushing back and forth on the shore, the air was filled with ashes and cinders. The darkness that had obscured the day was illumined only by the flames and flashes from the mountain. The boy was young and active, and his mother, who was too corpulent to flee, begged him to leave the house, but he would not go without her. Hand in hand he and his mother started along the road in that scene of confusion and terror—“the shrieking women, crying children, shouting men, some calling for their parents, others for their husbands, others for their children, some lifting up their hands to the gods, but the greater part convinced that there were now no gods at all, and that the final endless night had come upon the world.”
But the gods had not ceased to exist. To quote the Christmas hymn, “Apollo, Pallas, Jove, and Mars held undisturbed their ancient reign” for centuries more. Pliny, in the latter part of his life, as governor of Bithynia, came in contact with the new sect of Christians, who seemed to him a strange sort of ignorant and superstitious people. Naturally he felt little sympathy with a religion that had arisen among the slaves and fishermen of the East. His friend Tacitus called it a depraved and ignorant superstition. But this new religion had a proselytizing power as great as that of Buddhism and it became the state religion of the Empire, and through that religion the ideas of the Hebrew law were to become, by means of the Christians, a determining factor in jurisprudence. The priests of the Church, as the only literate class, were to hold in their hands through the long darkness of the barbarian invasions and conquests, the destinies of the law in the western European world. With the advent of Christianity as the religion of the state, the seat of empire moved to the refounded Byzantium, called the City of Constantine. The language of the Roman law became Greek and it is now necessary to describe its fortunes when it passed into Grecian hands.
[1. ]Rudolf von Ihering, more commonly spelled von Jhering (1818–92). —C. J. R., Jr.
[2. ]Theodor Mommsen (1817–1903). —C. J. R., Jr.
[3. ]Jacques Cujas (1522–90), French jurist who sought to recover accurate readings of the Justinian texts, the Theodosian Code, and other leading Roman law documents. He was particularly known for placing the cause of scholarship above the sectarian politics of his day. —C. J. R., Jr.
[4. ]Zane has more to say about Pliny the Younger (A. D. 61 or 62–113) in his essay, “A Roman Lawyer,” Illinois Law Review 8 (1914): 575–93. The historian referred to is Charles Merivale (1808–93). —C. J. R., Jr.