Let us take one more illustration. James Bryce once reckoned that Roman law was still influential in the courts of about three hundred million people; and he pointed out that it had gained this capacity because the jurists of the Empire had based every paragraph of the statutes upon the general principle of equity. Stroux, in his brilliant monograph entitled Summum jus summa injuria, has recently demonstrated that Cicero, employing Aristotelian rules of rhetoric, exerted a powerful influence upon the reform of Roman Law by emphasizing in his rhetorical treatises the claims of equity as against statute, and of intention (voluntas) as against the literal interpretation of the word. This is all to the good. But the process was hardly as simple as that. The Aristotelian rules of rhetoric had worked no vast reforms in Greece, and at Rome they were not likely to prove less arid in practical life if left to the mercy of text-books. Ideas do not readily revive in that impersonal fashion.
There are two very definite reasons why the ideas of equity and intention had a fair chance to grow into importance in the Ciceronian court. The first is the existence of the peregrine court. As early as 242 B.C. the senate had created a special court for strangers to use in their litigation with Romans. This was, of course, devised in order to attract traders to Rome with a guaranty that they would be dealt with fairly, and it could only be a tribunal of arbitration seeking to reach equitable decisions regardless of Roman statute and by formulary procedure. We know how this court familiarized the Romans with the standard practices of commercial peoples, how it created a respect for jus gentium, how in time it accustomed the Romans to respect equity as a thing more sacred than local law and how it trained them to use the formula, until, by about 150 B.C., even the urban court could abandon the rigid legis actiones in favor of the formulary procedure, and the praetor’s edict was given standing by the side of statute. It is, of course, inconceivable that phrases advocating a free interpretation of law, translated from rhetorical school books, could have won any response at Rome unless the courts had been ready for them.
But there is another item in the reckoning. Cicero, who studied law at the time when this revolution was taking place in the native courts, set out on a long and influential career of forty years as a lawyer for the defense. In that career he had a greater need than anyone else for what we may call the humane and sociological interpretation of law. He seized, of course, with eagerness upon the rhetorical distinction, provided by the Greeks, between the word and the spirit, between law and equity, but this distinction had already been recognized at Rome by the creation of the peregrine court, had in fact been latent in the long series of laws that brought the plebeians their rights during the several centuries of bloodless compromises of the early Republic. Indeed it is safe to say that Cicero without the aid of alien ideas would necessarily have evolved his enthusiasm for equitable interpretation during his long career as a defensive advocate, using as his tool the Roman court with its formulary procedure, its jus honorarium, and its respect for aequitas and jus gentium.[24] In a word, a reform already in progress at home gave Cicero an excellent opportunity to develop his legal practice on the principles of a liberal interpretation of law and to draw upon Greek authors for useful support for his contention, and thus aid in formulating general principles that made the civil law the text-book of the world.
Cicero was a wide reader, and he appropriated ideas from far and near, but he appropriated and applied what he read at the points where he was doing his own thinking, and he applied it creatively. Such was, throughout his life, Cicero’s response to experience.
FOOTNOTES
[1] The prefaces of Tyrrell and Purser, and the brief biographies of Strachan-Davidson and of Boissier are models of sane judgment regarding Cicero’s political behavior.
[2] Throughout his life Cicero found no good word for Cinna, though he was fair enough to democracy to praise the Gracchans even during Sulla’s ascendancy, De Invent. 1. 5.
[3] Pro Roscio, 136.
[4] In Caecil., 70; In Verr. i. 37; iii, 81; Pro Caec. 69; Pro Cluent. 151; In Toga Cand., ed. Stengl., 68; Lex Agr. ii. 81.
[5] Pro Cluent., 151; In Toga Cand. 69; Lex Agr. ii, 10; 31; Pro Rab. 14, 15. In the days of his most pronounced sympathy for the senate he refers to the Gracchi with less deference and at times goes so far as to justify their execution.