Law
The greatest intellectual achievement of the Roman people was in the domain of law. The spiritual endowment of the typical Roman included all the qualities of the lawyer—a sense of equity that was quite devoid of sentimentalism, an instinct for order, discipline, and business, a language of great clarity and precision, and above all, a devotion to ceremonies and formulæ which sternly rejected abstract casuistry. Their law took its rise in a series of religious formulæ known only to priests and to the king as chief priest. The Twelve Tables put some of the most ancient principles into words, and partly from their use as a text-book of education, were regarded almost with as much veneration as the Two Tables of Moses. They were, in fact, sometimes considered as the sole fountain of jurisprudence, or at any rate as the sole code of written law. The legislative enactments of the State were on a far lower plane and no ancient people ever considered its legislature capable of turning out a daily quota of legislation as modern parliaments are supposed to do. In the main the fabric of Roman jurisprudence consisted of “case law” made by the judges on the tribunals. The Prætor Urbanus made the Civil Law of Rome, and this became permanent by means of the system of Perpetual Edicts. Religion continued to control the international law of the Roman world, an affair of ceremonies in the hands of the priestly college of heralds—the jus fetiale. But, meanwhile, the prætor peregrinus who had to decide cases between non-citizens was gradually accumulating a body of law, wrongly termed international, in the jus gentium. It was observed that there was a great deal in common between the various codes of the Italian and other Mediterranean States, and this was put together in the foreign prætor’s edict. The more philosophical jurists, inspired with the Stoic doctrines about following nature, evolved the theory that this common element of various nations was nothing but the Natural Law, jus naturæ. It was a fruitful error, and it lies at the base of much of the modern “international law” as expounded by Grotius and other seventeenth-century jurists.
The Civil Law of Rome was in the main, then, a series of precedents handed down by prætor to prætor from times beyond record. To it was added a large body of “counsel’s opinions” which drew their validity largely from the eminence of their authors. It was Hadrian who set about the systematisation of these. He organised the jurisprudentes into a regular profession. He appointed his “counsellors” from the leading barristers of the day, and he gave to the whole body of responsa prudentium, “the opinions of the learned,” the validity of statutory law. The justice and precision of the civil law was the most attractive feature of Roman civilisation to the barbarian world. Gallic and British communities made haste to learn Latin in order that they might gain the “Latin right” which admitted them to the privilege of enjoying Roman law. In A.D. 212, Caracalla, who did little else to deserve the gratitude of posterity, uttered a single edict called the “Antonine Constitution” which admitted the whole empire to the privileges of Roman citizenship. Now a single code ran throughout the whole Western world. Hadrian had set his most distinguished lawyers, under the leadership of Salvius Julianus, to codify the “perpetual edict” of the prætors. It was under the Antonines that some citizen from the East, who is only known to us by the common prænomen of Gaius, wrote those learned “Institutes of Roman Law” which are still the nursery of our lawyers. But it was the great Eastern emperor Justinian (A.D. 527-565) who codified the whole body of civil law in a series of immense documents. Roman law had already conquered its barbarian conquerors, the Goths, and almost every European legal system except our own is based upon that ancient law which arose from the Twelve Tables and the prætor’s edict. The canon law of the Church was Roman law in its essence.