Ancient Law Chapter 2

t which belonged to enactments of the legislature； and such a book in its turn constituted a new foundation on which a further body of jurisprudence might rest. T

he responses of the early lawyers were not however published， in the modern sense， by their author. They were recorded and edited by his pupils， and were not therefore in all probability arranged according to any scheme of classification. The part of the students in these publications must be carefully noted， because the service they rendered to their teacher seems to have been generally repaid by his sedulous attention to the pupils' education. The educational treatises called Institutes or Commentaries， which are a later fruit of the duty then recognised， are among the most remarkable features of the Roman system. It was apparently in these Institutional works， and not in the books intended for trained lawyers， that the jurisconsults gave to the public their classifications and their proposals for modifying and improving the technical phraseology.

　　In comparing the Roman Responsa Prudentum with their nearest English counterpart， it must be carefully borne in mind that the authority by which this part of the Roman jurisprudence was expounded was not the bench， but the bar. The decision of a Roman tribunal， though conclusive in the particular case， had no ulterior authority except such as was given by the professional repute of the magistrate who happened to be in office for the time. Properly speaking， there was no institution at Rome during the republic analogous to the English Bench， the Chambers of imperial Germany， or the Parliaments of Monarchical France. There were magistrates indeed， invested with momentous judicial functions in their several departments， but the tenure of the magistracies was but for a single year， so that they are much less aptly compared to a permanent judicature than to a cycle of offices briskly circulating among the leaders of the bar. Much might be said on the origin of a condition of things which looks to us like a startling anomaly， but which was in fact much more congenial than our own system to the spirit of ancient societies， tending， as they always did， to split into distinct orders which， however exclusive themselves， tolerated no professional hierarchy above them.

　　It is remarkable that this system did not produce certain effects which might on the whole have been expected from it. It did not， for example， popularise the Roman law —— it did not， as in some of the Greek republics， lessen the effort of intellect required for the mastery of the science， although its diffusion and authoritative exposition were opposed by no artificial barriers. On the contrary， if it had not been for the operation of a separate set of causes， there were strong probabilities that the Roman jurisprudence would have become as minute， technical， and difficult as any system which has since prevailed. Again， a consequence which might still more naturally have been looked for， does not appear at any time to have exhibited itself. The jurisconsults， until the liberties of Rome were overthrown， formed a class which was quite undefined and must have fluctuated greatly in numbers； nevertheless， there does not seem to have existed a doubt as to the particular individuals whose opinion， in their generation， was conclusive on the cases submitted to them. The vivid pictures of a leading jurisconsult's daily practice which abound in Latin literature —— the clients from the country flocking to his antechamber in the early morning， and the students standing round with their note-books to record the great lawyer's replies —— are seldom or never identified at any given period with more than one or two conspicuous names. Owing too to the direct contact of the client and the advocate， the Roman people itself seems to have been always alive to the rise and fall of professional reputation， and there is abundance of proof， more particularly in the well-known oration of Cicero， Pro Muraena， that the reverence of the commons for forensic success was apt to be excessive rather than deficient.

　　We cannot doubt

that the peculiarities which have been noted in the instrumentality by which the development of the Roman law was first effected， were the source of its characteristic excellence， its early wealth in principles. The growth and exuberance of principle was fostered， in part， by the competition among the expositors of the law， an influence wholly unknown where there exists a Bench， the depositaries intrusted by king or commonwealth with the prerogative of justice. But the chief agency， no doubt， was the uncontrolled multiplication of cases for legal decision. The state of facts which caused genuine perplexity to a country client was not a whit more entitled to form the basis of the jurisconsult's Response， or legal decision， than a set of hypothetical circumstances propounded by an ingenious pupil. All combinations of fact were on precisely the same footing， whether they were real or imaginary. It was nothing to the jurisconsult that his opinion was overruled for the moment by the magistrate who adjudicated on his client's case， unless that magistrate happened to rank above him in legal knowledge or the esteem of his profession. I do not， indeed， mean it to be inferred that he would wholly omit to consider his client's advantage， for the client was in earlier times the great lawyer's constituent and at a later period his paymaster， but the main road to the rewards of ambition lay through the good opinion of his order， and it is obvious that under such a system as I have been describing this was much more likely to be secured by viewing each case as an illustration of a great principle， or an exemplification of a broad rule， than by merely shaping it for an insulated forensic triumph. A still more powerful influence must have been exercised by the want of any distinct check on the suggestion or invention of possible questions. Where the data can be multiplied at pleasure， the facilities for evolving a general rule are immensely increased. As the law is administered among ourselves， the judge cannot travel out of the sets of facts exhibited before him or before his predecessors. Accordingly each group of circumstances which is adjudicated upon receives， to employ a Gallicism， a sort of consecration. It acquires certain qualities which distinguish it from every other case genuine or hypothetical. But at Rome， as I have attempted to explain， there was nothing resembling a Bench or Chamber of judges； and therefore no combination of facts possessed any particular value more than another. When a difficulty came for opinion before the jurisconsult， there was nothing to prevent a person endowed with a nice perception of analogy from at once proceeding to adduce and consider an entire class of supposed questions with which a particular feature connected it. Whatever were the practical advice given to the client， the responsum treasured up in the notebooks of listening pupils would doubtless contemplate the circumstances as governed by a great principle， or included in a sweeping rule. Nothing like this has ever been possible among ourselves， and it should be acknowledged that in many criticisms passed on the English law the manner in which it has been enunciated seems to have been lost sight of. The hesitation of our courts in declaring principles may be much more reasonably attributed to the comparative scantiness of our precedents， voluminous as they appear to him who is acquainted with no other system， than to the temper of our judges. 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 debris 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.

　　The period of Roman freedom was the period during which the

stamp of a distinctive character was impressed on the Roman jurisprudence； and through all the earlier part of it， it was by the Responses of the jurisconsults that the development of the law was mainly carried on. But as we approach the fall of the republic there are signs that the Responses are assuming a form which must have been fatal to their farther expansion. They are becoming systematised and reduced into compendia. Q. Mucius Scaevola， the Pontifex， is said to have published a manual of the entire Civil Law， and there are traces in the writings of Cicero of growing disrelish for the old methods， as compared with the more active instruments of legal innovation. Other agencies had in fact by this time been brought to bear on the law. The Edict， or annual proclamation of the Praetor， had risen into credit as the principal engine of law reform， and L. Cornelius Sylla， by causing to be enacted the great group of statutes called the Leges Corneliae， had shown what rapid and speedy improvements can be effected by direct legislation. The final blow to the Responses was dealt by Augustus， who limited to a few leading jurisconsults the right of giving binding opinions on cases submitted to them， a change which， though it brings us nearer the ideas of the modern world， must obviously have altered fundamentally the characteristics of the legal profession and the nature of its influence on Roman law. At a later period another school of jurisconsults arose， the great lights of jurisprudence for all time. But Ulpian and Paulus， Gaius and Papinian， were not authors of Responses. Their works were regular treatises on particular departments of the law， more especially on the Praetor's Edict.

　　The Equity of the

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