The Online Library of Liberty

A project of Liberty Fund, Inc.

• Foreword
• Zane’s Legal Career
• An Appreciation
• Introduction
• Chapter 1: The Physical Basis of Law
• Chapter 2: Law Among Primordial Men
• Chapter 3: The Aryan Law
• Chapter 4: Babylonian Law
• Chapter 5: The Jewish Law
• Chapter 6: Law Among the Greeks
• Chapter 7: A Greek Lawsuit
• Chapter 8: Greek Philosophy of Law
• Chapter 9: The Roman Creation of Modern Law
• Chapter 10: The Greek Compilation of Roman Law
• Chapter 11: Medieval Law In Europe
• Chapter 12: The Origins of English Law
• Chapter 13: English Law—righteous and Unrighteous
• Chapter 14: The Reconciliation of the English Systems of Law
• Chapter 15: The Absolute Reign of Law
• Chapter 16: International Law
• Chapter 17: Conclusion
• Appendix: the Five Ages of the Bench and Bar of England
• Introduction
• The Five Ages of the Bench and Bar of England *
• I.: The Golden Age of the Common Law: From the Norman Conquest to the Death of Bracton 2
• II.: The Silver Age of the Common Law: From the Accession of Edward I. To the Death of Edward III. 6
• III.: The Bronze Age of the Common Law: From the Death of Edward III. To the Death of Littleton 10
• IV.: The Iron Age of the Common Law: From Henry VII. To the Revolution of 1688 16
• V.: The Period of Reform: From William III. To Victoria 24

chapter 10

The Greek Compilation of Roman Law

In the age of the Antonines the gradually accumulated praetorian law was enacted into the form of the Perpetual Edict by the Emperor Hadrian. The theory of law applicable to the Emperor as the legislative power that the Roman people had confided to the Emperor the function of legislation, was now developed. Great lawyers were now holding the posts of power and were utilized as administrators. Papinian was praetorian prefect under Severus and Caracalla, the unworthy son of Severus, put him to death. Ulpian had been the assistant of Papinian, and became his successor as praetorian prefect. Ulpian lost his life in a mutiny of the praetorian guard. From this time forward the Empire was often rent among rival claimants to the imperium. After another such struggle Constantine, who had become sole Emperor, definitely made Christianity the state religion and transferred the capital of the Empire to the Greek Byzantium, which he renamed Constantinople. The official language of the law became Greek and naturally something had to be done regarding the vast literature of the law. For a hundred years or more attempts continued to reduce the law to less bulky form. It was a movement among the lawyers themselves, just as when the language of the English law was changed, as we shall see, there was an insistent demand, headed by Bacon, to get rid of the great bulk of the Anglo-Norman books of law and the Anglo-Norman Year Book reports.

In the meantime practically all of the Latin part of the Empire, the most of Italy, Northern Africa, Spain, Gaul, and Britain had passed to the barbarians and the Emperor Justinian was sole Roman Emperor, reigning at Constantinople. He appointed a commission to reduce the bulk of legal literature. The head of the commission was Tribonian. In a succession of years the commission reported the result of their labors. Out of the great bulk of the juristic writing was formed in fifty books the Digest, which consists of extracts from writers on the law and responses of jurisconsults. The greater part of those extracts consisted of quotations from five great juristic writers, Gaius, Papinian, Ulpian, Paul, and Modestinus. Others are quoted but the quotations are not numerous. Extracts from Ulpian, who was a prolific writer, constitute almost a third of the Digest. The ablest of them all was Papinian.

The legislation of the emperors that was considered important was compiled in the form of the Code, which is nothing more than a collection of laws promulgated by different emperors. Much of the Code defines the status of the church and its institutions. Next was arranged the part of the compilation which is called the Institutes. Gaius had written a book called the Institutes. It was a general classification and arrangement of the principles of the Roman law, to serve the same purpose as any general book of instruction such as Blackstone’s Commentaries. This book was taken for the Institutes of Justinian.

When this had been completed a series of laws was promulgated to supplement the Code and the Digest. These new laws of Justinian were called the Novels, or New Laws. Among them was the law, numbered one hundred and eighteen, which regulated descent of intestate property and wiped out the succession confined to males. It put into statutory form the long established custom. Every statute of descent in this land is modeled upon this novel of Justinian.

As soon as this compilation was made the Greek version was sent throughout the eastern dominions and the Latin version was sent to what remained to Justinian in Italy and North Africa of the former Western Roman Empire. But in the confusion resulting from the battles of Justinian’s generals with the barbarians, and from the irruption of the Lombards, this Justinianean compilation was practically forgotten, if it had ever been generally known.

The changes made in the Roman law by the compilers under Justinian have been greatly exaggerated. To one who is comparing manuscripts of a writer like Virgil or Horace, the presence or absence of a word is of great importance, but when a legal text is in question the insertion of a word to make the matter clearer or a recasting of a sentence which does not alter the sense is of no importance whatever. Yet industrious men of the level of grammarians have published books containing conjectural changes made by Tribonian and his colleagues in the texts; but these supposed changes are generally of little, if any, importance.

Perhaps an illustration of this kind of work and of what a waste it is will not be out of place. In the Digest under the general subject of “Release” is quoted an extract from the fifth book of a jurisconsult, Cervidius Scaevola. It is his opinion upon a case put to him. The Digests of Scaevola were edited and published by a pupil, Claudius Tryphoninus, who sometimes adds corrections or comments of his own. The extract is this:

But Tryphoninus, not understanding the narrow limitation put on the question by Scaevola, makes a comment as follows:

There is a tremendous amount of writing over this passage. In the matter of law Scaevola is right; but the two men are answering different questions. The case put to Scaevola is based upon one single point of complaint, namely, that the price was named by the mother and not by the daughter. A trained lawyer can answer that question only as Scaevola did. The case as put to him meant: if the daughter sued the bankers on this contract with the mother, could she recover, or did she have a cause of action against them by the single fact that her mother and not herself named the price in the contract? If she sued on the contract she adopted it. The price became binding upon her and the bankers had paid that price, and so far as that contract was concerned the bankers were released. This is why Scaevola put the construction on the question “if the inquiry was whether the bankers had been released,” meaning released from the contract.

But Tryphoninus puts a new construction on the question, which is whether on the whole transaction the daughter had any cause of action against the bankers under any circumstances, and whether the payment by the bankers released them from any and all liability to the daughter. On this view he makes the point that the mother having no right of administration—and such then was the law, for a woman could not be a tutor or guardian of the estate of her daughter—the bankers were not justified in dealing with the mother if they knew that she was selling her daughter’s property. Even so, the daughter could not repudiate the transaction, if she had taken the price from her mother. The daughter could not have both that price and another price for the goods. He assumes that she had not, and treats the mother as primarily liable to the daughter for disposing of the goods, and makes the bankers liable only if the mother cannot respond.

In our law to-day the transaction would be treated on the basis of the act of an administrator de son tort. If the price realized was a reasonable price and it passed into the daughter’s estate and she got the benefit of it, she suffered no damage.

Now this simple case is loaded down with acres of comment. It is contended that Tribonian changed the text of Scaevola. Attempts are made to reconstruct the actual extract, this one being assumed to be false; many conjectural emendations are made, all wholly unnecessary, for the opinion as it stands is good Roman law. Tribonian and his colleagues may safely be presumed to have known as much of their subject as these modern commentators. The compilers let the comment of Tryphoninus stand “for what it was worth,” which was very little, for Tryphoninus had not gone far enough into the case to see that the daughter could not have over again the price of the goods, if she had already received in her estate a reasonable price. This illustration will show how useless is much of the comment on Roman law.

Hitherto the Roman law has been considered in the department of private law applicable between citizens, and the excellence of the Roman law was in its system of private law, governing rights and duties as between individuals. In the field of public law, while it is true that many valuable lessons may be drawn from the polity of Rome, it is also true that she missed a great opportunity. The conception of a city-state drawing its revenue from the provinces doomed the Romans, as it did the Greeks, to sterility in devising new forms of institutions for wide realms. It is useless to speculate upon what would have been the result if, in the dying years of the Republic, constructive statesmanship could have remodeled Roman institutions upon the basis of a general citizenship in the Empire and a federated government. There was, in Italy at least, a population habituated to freedom in government. But the differences in culture among the nations which made up the Empire were too great, and political experience was too narrow to attain a federated commonwealth. Only an emperor with supreme power of administration and legislation was considered competent to deal with such a complicated situation. The selection of the ruler depended on the army, or a part of it. Internecine struggles between rival claimants sapped the strength of the whole realm. Whenever the occupant of the throne was feeble, incompetent, or ungovernable, the whole system was thrown out of function. Doubtless a great system of administration was devised, but no sentiment of nationality was nurtured, so that attachment to the government could become a living force of patriotism. Yet the resistance offered by the Empire through a long succession of years was marvelous, even though the legions were distributed over too long a frontier, beset in every part by those whose strongest instinct was pillage and the savage tendency to steal from another tribe.

Many reasons have been assigned for the fall of the Western Empire, but those reasons are never causes but the results of weakness. The favorite theme of the corruptions of civilization is baseless. Increasing civilization is never a deterioration. It is an improvement in mental and physical well-being. It always represents a greater social cohesion and a better capacity for discipline. One element of weakness, and that the greatest, was the presence of hordes of slaves and serfs. To them one master was as good as another. They were always ready to assist any invader, and to take part in the overthrow of existing institutions. This is the true reason why wealthy and populous provinces so quickly reverted to a condition of barbarism, where so much of the Roman system of private law could find little to which it was applicable. To such people civilized institutions were as useless as the famous cooking stoves sent by Carl Schurz, then Secretary of the Interior, to adorn the tepees of the Indians.

Before leaving the subject of Roman law it may be well to give a general sketch of the private law as it had become in the latter days of the Empire. As we have seen the Greeks had developed the idea in law that a contract results from an agreement. All the old formalities were swept away and the contract is the result of intention. This idea the Roman jurists thoroughly formulated. All that part of the law which is concerned with business, trade, and commerce was fully developed. Contracts of sale, of mortgage, of pledge and all the legal implements of credit and banking and for the transfer of funds, contracts of various kinds pertaining to trading and business ventures, including insurance, the law of partnerships and corporations of almost every condition, all the law of what were called bailments and the law of loans and surety-ship and warranty, were fully developed, but were to pass away as soon as commerce was destroyed. The law of property in movables was adapted by the Romans to all the exigencies and demands of business, trade, and commerce. Without going into the history of the law of real property at Rome, it is enough to say here that the property of the clan passed into the property of the family and at last into private property in land freely alienable by individuals, a result that had been already reached among the Greeks. All the different methods of placing mortgages or liens upon land and of alienating land or the possession or use of it, all the various servitudes or rights in another’s land, were recognized and defined in the law. It is not necessary to enter into the minutiae of the Roman doctrines of ownership or possession. In the domestic relations of husband and wife, with the accompanying law of marriage and divorce, the law applying to the relation of parent and child, of guardian and ward and the custody of incompetents is in essence and principle our law to-day. Slavery as a means of obtaining unpaid labor was still a natural condition, but it was recognized that slavery existed by reason of the existing law of practically all countries, although by the law of nature all men should be free. The condition of slaves was generally being greatly ameliorated and the Christian Church was setting its face steadily against the institution. Serfs attached to the soil had their onerous duties but the law protected their correlative rights of occupancy.

Infringements of the rights of personal security and of property were all legal wrongs, giving rise to all the various kinds of obligations to make redress, such as we know, and they were supported by the fact that many wrongs were public crimes. Public prosecutions were constantly supplanting private prosecutions. Legal inhibitions against fraud or duress or violence would well solve such questions arising in our law. Roman law in its injunction in favor of good faith went further than our common law. On a sale without a warranty, express or implied, our law puts all risk of the condition of the article upon the buyer, while in an insurance contract derived from the Roman law, the fullest disclosure is required in marine insurance and provisions therefor are inserted in an application for fire or life insurance. The duty to disclose on a sale facts affecting the price, a duty which the common law denied, was well settled in Roman law.

In the management of property, such as the use of water for irrigation, the Roman law would not differ from our own. But in the case of water being upon land from natural causes, the common law requires each landowner to protect himself against his neighbor, while the civil law did not go so far. A proprietor must avoid the precipitation from his own land of even natural waters upon his neighbor’s land. The systems are in accord as to the law relating to a proprietor’s being entitled to the right of support of his own land in its natural condition by his neighbor’s land.

The Roman law as to intestacy and the devolution of property had gotten rid of all the primitive features, such as the succession confined to males. Wills could be freely made and set aside for sufficient grounds, but Justinian’s law denied the right to a father or mother to wholly disinherit the child. Likewise in the Justinianean law the process of the praetor referring the issue to another for trial was supplanted by the praetor both settling the issue and deciding it. In English law all the tribunals that were governed by the ecclesiastical or canon law followed the procedure of Justinian, while the English common law, after a century of experiment and irresolution, adopted in a modified form the older procedure of the praetorian law. Other changes made by the Corpus Juris are not of sufficient importance to detain us. The differences are matters of detail, for the Institutes of Justinian, which formed a general outline of Roman law, are almost the same as the older Institutes of Gaius. One of the romances of the law was the discovery by the historian Niebuhr at Verona in 1816 of the lost Institutes of Gaius. He had in his hands a manuscript which was a palimpsest, that is to say, a manuscript in which the original writing had been taken off in order to write upon the pages again. Niebuhr saw some of the words, not entirely erased, of the former treatise. He brought out upon the pages the older writing and he had found the lost legal treasure of Gaius.

The fortunes of Roman law when its language became Greek, and its further history in the Eastern Roman Empire, are outside the scope of this history, for the future of civilized law was to be found in those lands which formed the nations of modern Europe, more especially Spain, France, the Netherlands, Germany, and England. The development of the English legal system will be separately treated, for it presents a connected story much like that of the Roman development.

It has been stated before that the failure of Greek law was in its inability to discover a tribunal competent to expand, administer, and apply the private law among even its own citizens. This failure arose both from the popular nature of the tribunals and from the want of a legal professional class. It remained in the evolution of law for the Roman to develop this competent tribunal and a powerful profession. The result was that among the Romans there was a rule of law. Among them it was not possible to have a condition where the tribunal openly avowed that it would apply to a controversy the unquestioned law applicable, only when it seemed proper to apply it. As long as litigants are represented in court by trained lawyers the insistence will be upon the rule of law. The difference will be as to what rule of law is applicable, and this will depend upon the facts and upon all those considerations arising from analogy and from logical reasoning, which are deemed of importance. This was the method of the jurisconsults in advising as to a rule. It is necessarily the method used wherever litigants are represented by trained lawyers.

The cheerful optimism of the Greeks in their revolt against the old system of the laws in the custody and knowledge of the priests and their successors, and their reliance upon the reasoning powers of the average individual citizen, carried them to the extreme that every citizen was a competent lawyer and judge without assistance from any class specially learned in the law. The Roman in his slow, sagacious, conservative way, reached a golden mean. The law ceased to be a system of priestly incantation or class imposture, and its destinies were put into the hands of a learned profession whose ranks were open to average citizens. From this conception of a proper milieu of the law, the civilized world has never departed, for the inherited experience of ages has taught the civilized man that in no other way can a citizen be made sure of his rights. This important cultural idea, with all the various applications of law to a condition of life which was essentially modern in its multiplied relations among men, is our heritage from Rome.