II.
Every student of the Pandects knows that the words "Roman law" denote the outcome of long preliminary labours, and the ultimate form of a jurisprudence which cannot be rightly understood without analysing all the historical elements employed in preparing and building it up. Treated in this way, the history of Roman law becomes, as it were, instantly transformed into a history of many different legislations following one another at intervals. From the Twelve Tables down to Justinian, this law never halts for an hour in its constant course of development. Even during the Middle Ages, when the compilations made at Constantinople were studied with religious zeal by expounders and commentators whose sole object was to faithfully reproduce and diffuse this law, even thus, in the hands of those interpreters, influenced by the altered spirit of the times and by new social developments, it underwent changes of which they were not themselves conscious. 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, which 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. Our object is now to familiarise ourselves with an immortal monument of ancient wisdom, to shape our legal education by it, to be helped by it to a clearer understanding of our own codes, and to contemplate it in its successive manifestations, while we search for its regulating law. 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.
All this continuous progress or evolution was the result of two forces, of two different elements. The true, primitive law of Rome was the special law of the Quirites, of which we find the remains in the Twelve Tables: a severe and restricted law abounding in formulas which had to be sacredly observed, and its administration was entrusted to a small number of citizens who alone were acquainted with its rules, whose authority was sanctioned by religion. The smallest mistake of form made void the most just decree, and where the law omitted to define the formula to be observed, no valid action could be brought. When the due formula, making the contract binding, had once been pronounced, no proof of mistake or fraud could annul it. "Uti lingua nuncupassit ita ius esto." A slave to forms, the judge could not listen to the voice of morality or rectitude; the most just complaint failed to move him, unless supported by a text of law. The defendant dared not stir a step without the continual guidance of the legislator, inasmuch as every juridical formula was sacred and inviolable; and as the science of law was monopolised by the College of Pontiffs, the most aristocratic and conservative body in Rome, it became a kind of occult science. It was this very character, however, apparently so restricted and pedantic, that gave its great force to the law in Rome. For law, being now freed for the first time from every extraneous element belonging to morals and good faith, became firm and inexorable. Any one who had the law in his favour was safe to see it promptly carried out. History affords no example elsewhere of legal sanction and redress being applied so swiftly and surely as in Rome. In Athens, indeed, where the laws were more philosophical, and the popular conscience gave judgment, investigating motives, despising formulas, and looking only to substantial justice, caprice often prevailed, and law never attained the iron strength and tenacity of the Roman jurisprudence.
But with changing times, all things changed in Rome. This jurisprudence revered as sacred, but described by Vico as made up of formulas and phrases, was well adapted to a rude and primitive people. Ideas had greatly altered in the days of Cicero, who in his speech pro Murena severely satirises a science which, in his eyes, had become ridiculous: "res enim sunt parvæ, prope in singulis literis atque interpunctionibus occupatæ." He looked upon the whole thing as a fraud designed by the priests to secure themselves a monopoly. Was he in the right or the wrong? Vico, in examining a similar question, showed that Cicero was mistaken on this score. Cicero and his contemporaries, he said, lived in too cultivated an age to comprehend rude and primitive jurisprudence; they could not grasp its true significance, but formed their judgment of the ancient laws according to the ideas and principles of their own times. This view, which was first broached in the Scienza Nuova, was afterwards accepted by many other writers; and it is now placed beyond a doubt that the primitive Roman law was not the artifice of a learned few, but was a spontaneous and necessary growth among the people with whom it had its origin. At first, custom, clearly distinguished from the law formulated and written, tempered its rigid severity. Good faith and equity, disregarded and rejected by the law, found their sanction in custom, were administered by a separate tribunal, and were always respected, inasmuch as the sentence pronounced by the officiating magistrate was morally, though not legally, binding, and was therefore of great efficacy as the genuine expression of public opinion. The sentence of condemnation could not be carried out by force; but it made the condemned man infamous, and, as a last resort, the magistrate could cite the accused before the people, as the supreme legislator and judge.
But at a later date customs grew corrupt, and no longer sufficed to protect public good faith and morality, which were driven to seek asylum and sanction in the law, and so began gradually to modify its primitive character. Substance now prevailed over form, equity over the ancient text of the law, the intention of the contracting parties over words uttered by mistake; the law became more moral as customs grew more degraded. This transformation, though very gradual at the beginning, was afterward, accelerated by the new conditions of the Republics in which a change took place not unlike that occurring in the history of jurisprudence, towards the beginning of the seventeenth century. At that time the various European States, with their various systems of law, having contracted new relations with one another, came to recognise the necessity of establishing some fixed rules by which all should be bound, and thus, under the auspices of Hugh Grotius, the so-called School of Natural Law was built up. The same occurred in Rome, if not in the science, at any rate in the practice of law. As the dominion of the Republic became extended in Italy, its relations increased with neighbouring nations, among whom the more philosophical and less severe laws and principles of the Greek jurisprudence prevailed. It was impossible to impose upon all these nations, without modification, the rigid law of the Roman patriciate. Accordingly a new system of law, of a simpler character and wider reach, took shape and rapidly grew. This was named the jus gentium, to distinguish it from the other, the jus civile. "Jus gentium est quod naturalis ratio inter omnes homines constituit." This system, however, was not deduced from philosophic theories concerning human nature, as was the, appropriately styled, natural law of the eighteenth century; it originated in the practical needs of the Romans and their new relations with other Italian peoples: it was fostered by the principles of Greek jurisprudence that had been transplanted into Southern Italy; it met the new requirements of the Romans themselves; and taking the place that custom had previously filled in the Roman courts, grew side by side with the law of the Patricians with which it long maintained its union.
There were thus two systems of law in force in Rome; and we accordingly find on the one hand judges and courts faithful to the ancient formalism, on the other, judges and courts taking cognizance of equity and good faith, and almost discharging the duties of the Censor. The continuous onward progress of the jus gentium, the reciprocal action of the two legal systems ultimately fusing them into one, wherein the old Roman formation gradually lost its rigidity, and equity, becoming incorporated with the civil law, began to assume a more definite and regular form, were all consequences of the principle which dominates the life and history of the Roman law, and may even be said to constitute it. For it has been moulded and diffused through the world, inheriting from the old Quirites its frame of iron; from contact with other races and from such germs as it could assimilate of Greek civilisation, its more comprehensive and human spirit. Assuming thus a character at once exact and philosophical, it seemed as though destined to become, from its superiority, the universal jurisprudence, the indispensable foundation, as it were, of all future legislation. This union of legal systems was effected by the Prætor. He it was who represented both the modern spirit and the ancient, enlarging the old law with the defences of equity which he strengthened by submitting it to the trammels of a formal procedure. This in substance was what took place with regard to customs, letters, and everything else. The fusion of Greek civilisation with the Roman constitutes the history of the ancient world.