Roman law

“ The Roman law, however, with its remarkable tendency to innovate on ancient usage only just so far as the exigency of the commonwealth may require, preserves both the primeval institution and the natural limitation to which I conceive it to have been subject. In every relation of life in which the collective community might have occasion to avail itself of his wisdom and strength, for all purposes of counsel or of war, the filius familias, or Son under Power, was as free as his father. It was a maxim of Roman jurisprudence that the Patria Potestas did not extend to the Jus Publicum. ”

“ But it is only up to a certain point that the progress of Roman law can be taken to represent the progress of other systems of jurisprudence. The theory of Natural law is exclusively Roman. The notion of the vinculum juris, so far as my knowledge extends, is exclusively Roman. The many peculiarities of the mature Roman law of Contract and Delict which are traceable to these two ideas, whether singly or in combination, are therefore among the exclusive products of one particular society. ”

“ Religious houses and chartered towns hired champions at a regular salary to defend all the cases to which they might become a party.
THE REVIVAL OF THE ROMAN LAW.—Now the barbarian law-system, if such it can be called, the character of which we have simply suggested by the preceding illustrations, gradually displaced the Roman law in all those countries where the two systems at first existed alongside each other, save in Italy and Southern France, where the provincials greatly outnumbered the invaders. But the admirable jurisprudence of Rome was bound to assert its superiority. ”

“ The principles and practice of the Roman law were sedulously inculcated by the tribe of civilian lawyers who by the beginning of the sixteenth century infested every Court throughout Europe. Every potentate, great and small, little as he might like its application by his feudal overlord to himself, was yet only too ready and willing to invoke its aid for the oppression of his own vassals or peasants. ”

“ Several eminent civilians, smit with the beauty of the Roman law, and filled with magnificent ideas of the greatness of that empire, have imagined that nothing noble, beautiful, or wise, in the science of legislation, could flow from any other source; and, accordingly, have fixed on Rome as the parent of the feudal constitutions. ”

“ It is not until the fifteenth century that this historic development can be said to have ceased among us, and Roman law become mainly a subject of learned research. It is at this time that a new and modern system of jurisprudence first reveals itself to history, endowed with a separate life, and with a form of its own, though borrowing much from the Roman law, which366 in consequence continues to be of the utmost value to us, and still deserves our most assiduous attention, although for a very different purpose from that with which it was studied during the Middle Ages. ”

“ Justinian set his best lawyers to put them all in order, so that it might be more easy to work by them. The Roman citizens in Greece, Italy, and all the lands overrun by the Teutonic nations were still judged by their own laws, so that this was a very useful work; and it was so well done that the conquerors took them up in time, and the Roman law was the great model studied everywhere by those who wished to understand the rules of jurisprudence, that is, of law and justice. Thus in another way Rome conquered her conquerors. ”

“ It is true that in the wealth of legal principle we are considerably poorer than several modern European nations. But they, it must be remembered, took the Roman jurisprudence for the foundation of their civil institutions. They built the débris of the Roman law into their walls; but in the materials and workmanship of the residue there is not much which distinguishes it favourably from the structure erected by the English judicature. ”

“ Almost everybody who has knowledge enough of Roman law to appreciate the Roman penal system, the Roman theory of the obligations established by Contract or Delict, the Roman view of Debts and of the modes of incurring, extinguishing, and transmitting them, the Roman notion of the continuance of individual existence by Universal Succession, may be trusted to say whence arose the frame of mind to which the problems of Western theology proved so congenial, whence came the phraseology in which these problems were stated, and whence the description of reasoning employed in their solution. ”

“ Throughout the days of the expanding republic, and even into the days of the early empire there remained a great number of men conscious of Roman citizenship, feeling it a privilege and an obligation to be a Roman citizen, confident of their rights under the Roman law and willing to make sacrifices in the name of Rome. The prestige of Rome as of something just and great and law- upholding spread far beyond the Roman boundaries. ”

“ We have in the annals of Roman law a nearly complete history of the crumbling away of an archaic system, and of the formation of new institutions from the recombined materials, institutions some of which descended unimpaired to the modern world, while others, destroyed or corrupted by contact with barbarism in the dark ages, had again to be recovered by mankind. ”

“ The revival of Roman law began in France and Italy in the second half Roman law. of the 11th century, developing with extraordinary brilliance in the latter country at the university of Bologna, which was destined for a long time to dominate Europe. Roman law spread rapidly in the French schools and universities, except that of Paris, which was closed to it by the papacy; and the influence of this study was so great that it transformed society. On the one hand it contributed largely to the reconstitution of the royal power, modelling the rights of the king on those of the Roman emperor. ”

“ The German law of the conquerors and the Roman law of their subjects would not have combined if they had not possessed more affinity for each other than refined jurisprudence has usually for the customs of savages. It is extremely likely that the codes of the barbarians, archaic as they seem, are only a compound of true primitive usage with half-understood Roman rules, and that it was the foreign ingredient which enabled them to coalesce with a Roman jurisprudence that had already receded somewhat from the comparative finish which it had acquired under the Western Emperors. ”

“ In a word, whether is the supreme power belonging to the Roman people, or is it yours? Whether by the expulsion of kings has dominion been acquired for you or equal liberty for all? It is fitting that the Roman people should be allowed to enact a law, if it please. Or will ye decree a levy by way of punishment, according as each bill shall be proposed? and as soon as I, as tribune, shall begin to call the tribes to give their votes, will you, forthwith, as consul, force the younger men to take the military oath, and lead them out to camp? and will you threaten the commons? ”

“ The term “Roman law” is indefinite and ambiguous, being used in more than one sense. First, in a wide sense, it comprehends the totality of the laws of the Roman state, which were observed by its subjects during about thirteen centuries, from Romulus to Justinian. In a second and stricter meaning it indicates the law as consolidated by Justinian or, in other words, the law contained in the Corpus Juris Civilis, which is the name that has been given since the 16th century to Justinian's legislative works as a whole, and distinguishes them from the Corpus Juris Canonici. ”

“ Independently of its influence on individual municipal systems, the Roman law deserves to be carefully studied, as affording the easiest transition, and the best introduction, from classical and philosophical pursuits to the technical rules and scientific principles of general jurisprudence. From Aristotle’s Ethics, or from Cicero De Officiis, the passage is plain and the ascent gentle to the Institutes of Gaius and Justinian ”

“ I grant that the Romans have but a moderate respect for the law. But the truth is, there is no law in the country. They have a respect for the Code Napoléon, since they urgently ask for it. What they do not respect is, the official caprice of their masters. ”

“ They alone offer that curious example of one nation's totally eclipsing the scientific achievements of all other nations. By law, however, we here understand not all branches of law, as constitutional, criminal, pontifical, and private law, together with jurisprudence. By Roman Law we mean exclusively Roman Private Law. The writings of Roman jurists on constitutional and criminal law have been superseded and surpassed by the writings of more modern jurists. ”

“ Setting aside the Conventional or Treaty Law of Nations, it is surprising how large a part of the system is made up of pure Roman law. Wherever there is a doctrine of the jurisconsults affirmed by them to be in harmony with the Jus Gentium, the publicists have found a reason for borrowing it, however plainly it may bear the marks of a distinctively Roman origin. We may observe too that the derivative theories are afflicted with the weakness of the primary notion. In the majority of the Publicists, the mode of thought is still "mixed." ”

“ It may further be remarked that no one is likely to succeed in the investigation who does not clearly realise that the stationary condition of the human race is the rule, the progressive the exception. And another indispensable condition of success is an accurate knowledge of Roman law in all its principal stages. The Roman jurisprudence has the longest known history of any set of human institutions. ”

“ It is remarkable that a Will never seems to have been regarded by the Romans as a means of disinheriting a Family, or of effecting the unequal distribution of a patrimony. The rules of law preventing its being turned to such a purpose, increase in number and stringency as the jurisprudence unfolds itself; and these rules correspond doubtless with the abiding sentiment of Roman society, as distinguished from occasional variations of feeling in individuals. ”

“ In every country in Europe where the Roman law is still recognized as more or less authoritative—and indeed in every country where the common law has borrowed more or less from the Roman—an acquaintance with the system of Roman jurisprudence as it is embodied in the law-books of Justinian has its value for the scientific lawyer. ”

“ With the institution of the praetor’s office our modern court system of judge and jury was firmly established, and a beginning was made in the development of Roman Law. On taking office the praetor published an edict containing the maxims of law and the forms of procedure which would govern him throughout his year of office. This document followed the edict of his predecessor, with such modifications and additions as his own judgment and the needs of the times required. The law in this way became a living thing and [Pg 19] constantly adapted itself to the changing needs of society. ”

“ The noblest product of the Latin mind is the Roman law, which is the foundation of almost all modern codes. With all their discernment of justice and love of order, the Romans, however, were too often hard and cruel. Their history is stained here and there with acts of unexampled atrocity. In private life, too, when the rigor of self-control gave way, they sunk into extremes of vulgar sensuality. ”

“ It is of course uncertain how far this progress of Roman ideas from a gross to a refined conception exemplifies the necessary progress of human thought on the subject of Contract. The Contract-law of all other ancient societies but the Roman is either too scanty to furnish information, or else is entirely lost; and modern jurisprudence is so thoroughly leavened with the Roman notions that it furnishes us with no contrasts or parallels from which instruction can be gleaned. ”

“ The Roman law was the most potent influence in determining the early development, particularly in respect to dominion and acquisition of territory. International law gained a certain dignity and weight from its relation to the Roman law, the most potent legal institution in history. ”

“ We cannot be absolutely certain of its old Roman name, but there is very strong reason for believing, from the number of expressions indicating shades of the notion of power into which the word manus enters, that the ancient general term was manus. But, when Roman law has advanced a little, both the name and the idea have become specialised. Power is discriminated, both in word and in conception, according to the object over which it is exerted. ”

“ ROMAN LAW AND LAW LITERATURE.—Although the Latin writers in all the departments of literary effort which we have so far reviewed did much valuable work, yet the Roman intellect in all these directions was under Greek guidance. Its work was largely imitative. But in another department it was different. We mean, of course, the field of legal and political science. Here the Romans ceased to be pupils, and became teachers. Nations, like men, have their mission. Rome's mission was to give laws to the world.
In the year 527 A.D. Justinian became emperor of the Roman empire in the East. ”

“ It is in fact the discovery of this law that has at once thrown a new light upon the whole history of Roman jurisprudence, which we perceive to have been always and unceasingly governed by it, and thus forced to assume a character so constant and continuous through all its various transformations, that what had before seemed to be a series of distinct legislations takes an entirely new aspect, making us spectators, as it were, of the evolution of a single idea, the progressive development of a work of Nature. ”