Part 856

"'The Responsa prudentum,' or answers of the learned in the law, consisted of explanations of authoritative written documents. It was assumed that the written law was binding, but the responses practically modified and even overruled it. A great variety of rules was thus supposed to be educed from the Twelve Tables [see ROME: B. C. 451-449], which were not in fact to be found there. They could be announced by any jurisconsult whose opinions might, if he were distinguished, have a binding force nearly equal to enactments of the legislature. The responses were not published by their author, but were recorded and edited by his pupils, and to this fact the world is indebted for the educational treatises, called Institutes or Commentaries, which are among the most remarkable features of the Roman system. The distinction between the 'responses' and the 'case law' of England should be noticed. The one consists of expositions by the bar, and the other by the bench. It might have been expected that such a system would have popularized the law. This was not the fact. Weight was only attached to the responses of conspicuous men who were masters of the principles as well as details of jurisprudence. The great development of legal principles at Rome was due to this method of producing law. Under the English system no judge can enunciate a principle until an actual controversy arises to which the rule can be applied; under the Roman theory, there was no limit to the question to which a response might be given, except the skill and ingenuity of the questioner. Every possible phase of a legal principle could thus be examined, and the result would show the symmetrical product of a single master mind. This method of developing law nearly ceased at the fall of the republic. The Responses were systematized and reduced into compendia. The right to make responses was limited by Augustus to a few jurisconsults. The edict of the Prætor became a source of law, and a great school of jurists, containing such men as Ulpian, Paulus, Gaius, and Papinian, arose, who were authors of treatises rather than of responses."

_T. W. Dwight, Introduction to Maine's "Ancient Law."_

"Apart from the more general political conditions on which jurisprudence also, and indeed jurisprudence especially depends, the causes of the excellence of the Roman civil law lie mainly in two features: first, that the plaintiff and defendant were specially obliged to explain and embody in due and binding form the grounds of the demand and of the objection to comply with it; and secondly, that the Romans appointed a permanent machinery for the edictal development of their law, and associated it immediately with practice. By the former the Romans precluded the pettifogging practices of advocates, by the latter they obviated incapable law-making, so far as such things can be prevented at all; and by means of both in conjunction they satisfied, as far as is possible, the two conflicting requirements, that law shall constantly be fixed, and that it shall constantly be in accordance with the spirit of the age. … This state [Rome], which made the highest demands on its burgesses and carried the idea of subordinating the individual to the interest of the whole further than any state before or since has done, only did and only could do so by itself removing the barriers to intercourse and unshackling liberty quite as much as it subjected it to restriction. In permission or in prohibition the law was always absolute. … A contract did not ordinarily furnish a ground of action, but where the right of the creditor was acknowledged, it was so all-powerful that there was no deliverance for the poor debtor, and no humane or equitable consideration was shown towards him. It seemed as if the law found a pleasure in presenting on all sides its sharpest spikes, in drawing the most extreme consequences, in forcibly obtruding on the bluntest understanding the tyrannic nature of the idea of right. The poetical form and the genial symbolism, which so pleasingly prevail in the Germanic legal ordinances, were foreign to the Roman; in his law all was clear and precise; no symbol was employed, no institution was superfluous. It was not cruel; everything necessary was performed without tedious ceremony, even the punishment of death; that a free man could not be tortured was a primitive maxim of Roman law, to obtain which other peoples have had to struggle for thousands of years. Yet this law was frightful in its inexorable severity, which we cannot suppose to have been very greatly mitigated by humanity in practice, for it was really the law of the people; more terrible than Venetian piombi and chambers of torture was that series of living entombments which the poor man saw yawning before him in the debtors' towers of the rich. But the greatness of Rome was involved in, and was based upon, the fact that the Roman people ordained for itself and endured a system of law, in which the eternal principles of freedom and of subordination, of property and of legal redress, reigned and still at the present day reign unadulterated and unmodified."

_T. Mommsen, History of Rome, book 1, chapters 8 and 11 (volume 1)._

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"Though hard to realise, and especially so for Englishmen, it is true that modern Europe owes to the Romans its ancient inherited sense of the sacredness of a free man's person and property, and its knowledge of the simplest and most rational methods by which person and property may be secured with least inconvenience to the whole community. The nations to come after Rome were saved the trouble of finding out all this for themselves; and it may be doubted whether any of them had the requisite genius. We in England, for example, owe the peculiar cumbrousness of our legal system to the absence of those direct Roman influences, which, on the continent, have simplified and illuminated the native legal material."

_W. W. Fowler, The City-State of the Greeks and Romans, page 209._

"In all the lands which had obeyed Rome, and were included in the nominal supremacy of the revived Western Empire, it [Roman Law] acquired a prevalence and power not derived from the sanction of any distinct human authority. No such authority was for the time being strong enough to compete in men's esteem and reverence with the shadow of majesty that still clung to the relics of Roman dominion. Thus the Roman law was not merely taken as (what for many purposes and in many states it really was) a common groundwork of institutions, ideas, and method, standing towards the actual rules of a given community somewhat in the same relation as in the Roman doctrine ius gentium to ius civile; but it was conceived as having, by its intrinsic reasonableness, a kind of supreme and eminent virtue, and as claiming the universal allegiance of civilised mankind. If I may use a German term for which I cannot find a good English equivalent, its principles were accepted not as ordained by Cæsar, but as in themselves binding on the Rechtsbewusstsein of Christendom. They were part of the dispensation of Roman authority to which the champions of the Empire in their secular controversy with the Papacy did not hesitate to attribute an origin no less divine than that of the Church itself. Even in England (though not in English practice, for anything I know) this feeling left its mark. In the middle of the thirteenth century, just when our legal and judicial system was settling into its typical form, Bracton copied whole pages of the Bolognese glossator Azo. On the Continent, where there was no centralised and countervailing local authority, the Roman law dwarfed everything else. Yet the law of the Corpus Juris and the glossators was not the existing positive law of this or that place: the Roman law was said to be the common law of the Empire, but its effect was always taken as modified by the custom of the country or city. 'Stadtrecht bricht Landrecht, Landrecht bricht gemein Recht.' Thus the main object of study was not a system of actually enforced rules, but a type assumed by actual systems as their exemplar without corresponding in detail to any of them. Under such conditions it was inevitable that positive authority should be depreciated, and the method of reasoning, even for practical purposes, from an ideal fitness of things, should be exalted, so that the distinction between laws actually administered and rules elaborated by the learned as in accordance with their assumed principles was almost lost sight of."

_Sir F. Pollock, Oxford Lectures, pages 30-32._

"In some of the nations of modern Continental Europe (as, for example, in France), the actual system of law is mainly of Roman descent; and in others of the same nations (as, for example in the States of Germany), the actual system of law, though not descended from the Roman, has been closely assimilated to the Roman by large importations from it. Accordingly, in most of the nations of modern Continental Europe, much of the substance of the actual system, and much of the technical language in which it is clothed, is derived from the Roman Law, and without some knowledge of the Roman Law, the technical language is unintelligible; whilst the order or arrangement commonly given to the system, imitates the exemplar of a scientific arrangement which is presented by the Institutes of Justinian. Even in our own country, a large portion of the Ecclesiastical and Equity, and some (though a smaller) portion of the Common, Law, is derived immediately from the Roman Law, or from the Roman through the Canon. Nor has the influence of the Roman Law been limited to the positive law of the modern European nations. For the technical language of this all-reaching system has deeply tinctured the language of the international law or morality which those nations affect to observe. … Much has been talked of the philosophy of the Roman Institutional writers. Of familiarity with Grecian philosophy there are few traces in their writings, and the little that they have borrowed from that source is the veriest foolishness: for example, their account of Jus naturale, in which they confound law with animal instincts; law, with all those wants and necessities of mankind which are causes of its institution. Nor is the Roman law to be resorted to as a magazine of legislative wisdom. The great Roman Lawyers are, in truth, expositors of a positive or technical system. Not Lord Coke himself is more purely technical. Their real merits lie in their thorough mastery of that system; in their command of its principles; in the readiness with which they recall, and the facility and certainty with which they apply them. In support of my own opinion of these great writers I shall quote the authority of two of the most eminent Jurists of modern times. 'The permanent value of the Corpus Juris Civilis,' says Falck, 'does not lie in the Decrees of the Emperors, but in the remains of juristical literature which have been preserved in the Pandects. Nor is it so much the matter of these juristical writings, as the scientific method employed by the authors in explicating the notions and maxims with which they have to deal, that has rendered them models to all succeeding ages, and pre-eminently fitted them to produce and to develope those qualities of the mind which are requisite to form a Jurist.' And Savigny says, 'It has been shown above, that, in our science, all results depend on the possession of leading principles; and it is exactly this possession upon which the greatness of the Roman jurists rests. The notions and maxims of their science do not appear to them to be the creatures of their own will; they are actual beings, with whose existence and genealogy they have become familiar from long and intimate intercourse. {2655} Hence their whole method of proceeding has a certainty which is found nowhere else except in mathematics, and it may be said without exaggeration that they calculate with their ideas. If they have a case to decide, they begin by acquiring the most vivid and distinct perception of it, and we see before our eyes the rise and progress of the whole affair, and all the changes it undergoes. It is as if this particular case were the germ whence the whole science was to be developed. Hence, with them, theory and practice are not in fact distinct; their theory is so thoroughly worked out as to be fit for immediate application, and their practice is uniformly ennobled by scientific treatment. In every principle they see a case to which it may be applied; in every case, the rule by which it is determined; and in the facility with which they pass from the general to the particular and the particular to the general, their mastery is indisputable.' In consequence of this mastery of principles, of their perfect consistency ('elegantia') and of the clearness of the method in which they are arranged, there is no positive system of law which it is so easy to seize as a whole. The smallness of its volume tends to the same end."

_J. Austin, Lectures on Jurisprudence, volume 3, pages 358-361._

"A glance at the history of those countries in Europe that did not adopt Roman Law will prove and illustrate the political origin of the 'reception' of this law in Germany and France still more forcibly. The Kingdom of Hungary never adopted the theory or practice of Roman Law. This seems all the more strange since Hungary used Latin as the official language of her legislature, laws, and law–courts down to the first quarter of this century. A country so intensely imbued with the idiom of Rome would seem to be quite likely to adopt also the law of Rome. This, however, the Hungarians never did. Their law is essentially similar to the common law of England, in that it is derived mainly from precedents and usage. The unwillingness of the Hungarians to adopt Roman Law was based on a political consideration. Roman Law, they noticed, requires a professional and privileged class of jurists who administer law to the exclusion of all other classes. In German territories the privileged class of civilians were in the service of the rulers. But it so happened that ever since 1526 the ruler, or at least the nominal head of Hungary, was a foreigner: the Archduke of Austria, or Emperor of Germany. Hence to introduce Roman Law in Hungary would have been tantamount to surrendering the law of the country to the administration of foreigners, or of professors, who had a vital interest to work in the interest of their foreign employer, the Archduke of Austria. Consequently the Hungarians prudently abstained from the establishment of numerous Universities, and persistently refused to adopt Roman Law, the scientific excellence of which they otherwise fully acknowledged. For, the Hungarians always were, and to the present moment still are, the only nation on the continent who maintained an amount of political liberty and self·government quite unknown to the rest of continental Europe, particularly in the last two centuries. The same reason applies to England. England never adopted Roman Law, because it was against the interests of English liberty to confide the making and interpretation of law to the hands of a privileged class of jurists. As said before, Roman Law cannot be adopted unless you adopt a privileged class of professional jurists into the bargain. The hatred of the English was not so much a hatred of civil law, but of the civilians. These jurists develop law on the strength of theoretical principles, and actual cases are not decided according to former judgments given in similar cases, but by principles obtained through theoretico-practical speculation. Hence there is no division of questions of law and fact in civil cases; nor is there, in a system of Roman Private Law, any room for juries, and thus law is taken completely out of the hands of the people. This, however, the English would not endure, and thus they naturally fell to confiding their law to their judges. English common law is judge-made law."

_E. Reich, Graeco-Roman Institutions, pages 62-63._

See, also, CORPUS JURIS CIVILIS; and EDUCATION, MEDIÆVAL: ITALY.

ROMAN LEGION.

See LEGION, ROMAN.

ROMAN LIBRARIES.

See LIBRARIES, ANCIENT: ROME.

ROMAN MEDICAL SCIENCE.

See MEDICAL SCIENCE: 1ST CENTURY, and 2D CENTURY.

ROMAN PEACE.

The benefits conferred upon the world by the universal dominion of Rome were of quite inestimable value. First of these benefits, … was the prolonged peace that was enforced throughout large portions of the world where chronic warfare had hitherto prevailed. The 'pax romana' has perhaps been sometimes depicted in exaggerated colours; but as compared with all that had preceded, and with all that followed, down to the beginning of the nineteenth century, it deserved the encomiums it has received."

_J. Fiske, American Political Ideas viewed from the Standpoint of Universal History, lecture 2._

ROMAN PONTIFICES.

See AUGURS.

ROMAN PRÆTORS.

See CONSUL.

ROMAN PROCONSUL AND PROPRÆTOR.

See PROCONSUL.

ROMAN QUESTION, The.

See ITALY: A. D. 1862-1866.

ROMAN ROADS IN BRITAIN.

"Four principal lines of road have been popularly known as 'the four Roman ways.' In the time of Edward the Confessor, and probably much earlier, there were four roads in England protected by the king's peace. These were called Watlinge-strete, Fosse, Hickenilde-strete, and Ermine-strete. Watling-street runs from London to Wroxeter. The Fosse from the sea coast near Seaton in Devonshire to Lincoln. The Ikenild·street from Iclingham near Bury St. Edmund's in Suffolk, to Wantage in Berkshire, and on to Cirencester and Gloucester. The Erming-street ran through the Fenny district of the east of England. These streets seem to have represented a combination of those portions of the Roman roads which in later times were adopted and kept in repair for the sake of traffic. … The name of 'Watling-street' became attached to other roads, as the Roman road beyond the Northumbrian wall, which crossed the Tyne at Corbridge and ran to the Frith of Forth at Cramond, bears that name; and the Roman road beyond Uriconium (Wroxeter) to Bravinium (Leintwarden) Salop, is also called Watling-street. The street in Canterbury through which the road from London to Dover passes is known as Watling-street, and a street in London also bears that name. … Two lines of road also bear the name of the Icknield-street, or Hikenilde-street; but there is some reason to believe that the Icknield-street was only a British trackway and never became a true Roman road."

_H. M. Scarth, Roman Britain, chapter 13._

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"In the fifth year after the Conquest, inquisition was made throughout the kingdom into the ancient laws and customs of England. … From this source we learn, that there were, at that time in England four great roads protected by the King's Peace, of which two ran lengthways through the island, and two crossed it, and that the names of the four were respectively, Watlinge-strete, Fosse, Hikenilde-strete and Erming-strete. These are the roads which are popularly but incorrectly known as 'the four Roman ways.' … The King's Peace was a high privilege. Any offence committed on these high ways was tried, not in the local court, where local influence might interfere with the administration of justice, but before the king's own officers."

_E. Guest, Origines Celticae, volume 2: The Four Roman Ways._

See, also, WATLING STREET.

ROMAN ROADS IN ITALY.

See ÆMILIAN WAY; APPIAN WAY; AURELIAN ROAD: CASSIAN ROAD; POSTUMIAN ROAD; and ROME: B. C. 295-191.

ROMAN SENATE.

See SENATE, ROMAN.

ROMAN VESTALS.

See VESTAL VIRGINS.

ROMAN WALLS IN BRITAIN.

There were two great fortified walls constructed by the Romans in Britain, but the name is most often applied to the first one, which was built under the orders of the Emperor Hadrian, from the Solway to the Tyne, 70 miles long and from 18 to 19 feet high, of solid masonry, with towers at intervals and with ditches throughout. In the reign of Antoninus Pius a second fortified line, farther to the north, extending from the Forth to the Clyde, was constructed. This latter was a rampart of earth connecting numerous forts. Hadrian's wall was strengthened at a later time by Severus and is sometimes called by his name. Popularly it is called "Graham's Dike." Both walls were for the protection of Roman Britain from the wild tribes of Caledonia.

_E. Guest, Origines Celticae, volume 2, page 88-94._

ALSO IN: _C. Merivale, History of the Romans, chapter 66-67._

ROMANCE LANGUAGE, Earliest Monument of.

See STRASBURG: A. D. 842.

ROMANIA, The Empire of.