LAW was the most characteristic and lasting expression of the Roman spirit. As Greece stands in history for freedom, so Rome stands for order; and as Greece bequeathed democracy and philosophy as the foundations of individual liberty, so Rome has left us its laws, and its traditions of administration, as the bases of social order. To unite these diverse legacies, to attune their stimulating opposition into harmony, is the elemental task of statesmanship.
Since law is the essence of Roman history it has been impossible to keep them separate, and this chapter can only be a structural and synoptic supplement to preceding and subsequent details. The Roman constitution was like the British—no set of permanently binding rules, but a stream of precedent giving direction without preventing change. As wealth increased, and life became more complex, new legislation issued from assemblies, Senate, magistrates, and princes; the body of the law grew as rapidly as the Empire and reached out to ever new frontiers. The education of lawyers, the guidance of judges, and the protection of the citizen from illegal judgments demanded the organization and formulation of the law into some orderly and accessible form. Amid the turmoil of the Gracchan and Marian revolution Publius Mucius Scaevola (consul, 133 B.C..) and his son Quintus (consul, 95 B.C..) labored to reduce the laws of Rome to an intelligible system. Cicero, pupil of another Quintus Mucius Scaevola (consul, 117 B.C.), wrote eloquently on the philosophy of law, and constructed an ideal code designed to preserve the fortune that he had gained and the faith that he had lost. The contradictory enactments of Marius and Sulla, the unprecedented powers of Pompey, the revolutionary legislation of Caesar, and the new constitution of Augustus created fresh problems for minds that struggled to make a logic of the law; and the brilliant jurist Antistius Labeo confounded confusion by declaring the decrees of Caesar and Augustus void, as the expression of usurped and illegal authority. Not till the Principate had established itself, first by the use of force and then by the force of use, could the new legislation win acceptance in the minds of men as well as in the courts of power. To the second and third centuries of our era belongs the honor of giving Roman law its final formulation in the West—an achievement comparable to the formulation of science and philosophy in Greece.
Here, too, Caesar had set the goal; but the actual work did not begin till Hadrian (A.D. 117). This best educated of the emperors gathered about him a corps of jurists as his Privy Council, and commissioned them to replace the variable annual edicts of the praetors with a Perpetual Edict to be observed by all future judges in Italy. The Greeks had produced since Solon no masterpiece of jurisprudence, and never a codified system of law; but the Greek cities of Asia and Italy had developed excellent municipal codes. The much-traveled Hadrian knew these cities well and was perhaps inspired by their constitutions to improve and co-ordinate the laws of Rome. Under his successors, the Antonines, the work of codification continued, and the half-official repute enjoyed by the Stoic philosophy permitted a profound Greek influence upon Roman law. The Stoics declared that law should accord with morality, and that guilt lay in the intention of the deed, not in the results. Antoninus, a product of the Stoic school, decreed that cases of doubt should be resolved in favor of the accused, and that a man should be held innocent until proved guilty1—two supreme principles of civilized law.
Favored by imperial patronage, the science of jurisprudence nurtured a succession of geniuses. Salvius Julianus, a Roman of African birth, showed so much learning and industry as quaestor Augusti, or legal adviser to the emperor, that the Senate voted him double the usual salary of that office. His responsa were acclaimed for their logic and clarity; his Digesta presented a systematic arrangement of civil and praetorian law; it was he who, as the leading member of Hadrian’s Council, formulated the Praetorian Perpetual Edict. Another jurist is known to us only by his first name, Gaius; his famous Institutiones was discovered by Niebuhr in 1816 on a faded palimpsest overwritten with some essays by Saint Jerome; it is now our fullest authority for pre-Justinian Roman law. It was issued (ca. A.D. 161) not as a creative work but as an elementary manual for students; if we find it a masterpiece of orderly exposition, we may imagine the intellectual stature of the men whose lost treatises it summarized. Sixty years later Papinian, Paulus, and Ulpian brought Roman jurisprudence to its height; while the administration of the law fell a victim to violence and chaos, they gave it a rational formulation and consistency. After them the great science sank in the general ruin.