Beacon Lights of History, Volume 03: Ancient Achievements. John Lord
senate could not override the constitution. The consuls, elected by the centuries, presided over the senate and over the assemblies of the people. There was no absolute power exercised at Rome until the subversion of the constitution, except by dictators chosen by the senate in times of imminent danger. Nor could senators elect members of their own body; the censors alone had the right of electing from the ex-magistrates, and of excluding such as were unworthy. The consuls could remain in office but a year, and could be called to account when their terms of office had expired. The tribunes of the people ultimately could prevent a consul from convening the senate, could seize a consul and imprison him, and could veto an ordinance of the senate itself. The nobles had no exclusive privilege like the feudal aristocracy of mediaeval Europe, although it was their aim to secure the high magistracies to the members of their own body. The term nobilitas implied that some one of a man's ancestors had filled a curule magistracy. A patrician, long before the reforms of the Gracchi, had become a man of secondary importance, but the nobles were aristocrats to the close of the republic, and continued to secure the highest offices; they prevented their own extinction by admitting into their ranks those who distinguished themselves,–that is, exercising their influence in the popular elections to secure the magistracies from among themselves.
The Roman constitution then, as gradually developed by the necessities and crises that arose, which I have not space to mention, was a wonderful monument of human wisdom. The nobility were very powerful from their wealth and influence, but the people were not ground down. There were no oppressive laws to reduce them to practical slavery; what rights they gained they retained. They constantly extorted new privileges, until they were sufficiently powerful to be courted by demagogues. It was the demagogues, generally aristocratic ones, like Catiline and Caesar, who subverted the liberties of the people by buying votes. But for nearly five hundred years not a man arose whom the Roman people feared, and the proud symbol "SPQR," on the standards of the armies of the republic, bore the name of the Roman Senate and People to the ends of the earth.
When, however, the senate came to be made up of men whom the great generals selected; when the tribunes played into the hands of the very men they were created to oppose; when the high-priest of a people, originally religious, was chosen politically and without regard to moral or religious consideration; when aristocratic nobles left their own ranks to steal the few offices which the people controlled,–then the constitution, under which the Romans had advanced to the conquest of the world, became subverted, and the empire was a consolidated despotism.
Under the emperors there was no constitution, since they combined in their own persons all the great offices of state, and controlled the senate, the army, the tribunals of the law, the distant provinces, the city itself, and regulated taxes and imposed burdens as they pleased. The senate lost its independence, the courts their justice, the army its spirit, and the people their hopes. And yet the old forms remained; the senate met as in the days of the Gracchi, and there were consuls and praetors as before.
However much we may deplore the subversion of the Roman constitution and the absolute reign of the emperors, in which most historians see a political necessity, there was yet under these emperors, whether good or bad, the reign of law, the bequest of five hundred years' experience. The emperors reigned despotically, but under the forms of legislation. Nor did they attempt to subvert laws which did not interfere with their own political power. What is called jurisprudence they even improved, as that later imperial despot Napoleon gave a code to the nation he ruled. It is this science of jurisprudence, for which the Romans had a genius, that gives them their highest claim to be ranked among the benefactors of mankind. They created legal science. Its aim was justice,–equity in the relations between man and man. This was the pride of the Roman world, even under the rule of tyrants and madmen, and this has survived all the calamities of fifteen hundred years. The Roman laws–founded by the Republic, but symmetrically completed by the Empire–have more powerfully affected the interests of civilization than have the philosophy and arts of Greece. Roman jurisprudence was not perfectly developed until five hundred years after the Christian era, when Justinian consolidated it into the Code, the Pandects, and the Institutes. The classical jurists, like Gaius, Ulpian, and Paulus, may have laid the foundation, but the superstructure was raised under the auspices of the imperial despots.
The earliest code of Roman laws was called the Twelve Tables, framed from the report of the commissioners sent to Athens and other Greek States, to collect what was most useful in their legal systems. The laws of the Twelve Tables were the basis of all the Roman laws, civil and religious. But the edicts of the praetors, who were the great equity judges as well as the common-law magistrates, proclaimed certain changes which custom and the practice of the courts had introduced; and these, added to the leges populi, or laws proposed by the consul and passed by the centuries, the plebiscita, or laws proposed by the tribunes and passed by the tribes, and the senatus consulta, or decrees of the senate, gradually swelled the laws to a great number. Three thousand engraved plates of brass containing these various laws were deposited in the capitol.
Subtleties and fictions were in the course of litigations introduced by the lawyers to defeat the written statutes, and jurisprudence became complicated as early as the time of Cicero. Even the opinions of eminent lawyers were adopted by the legal profession as authoritative, and were recognized by the courts. The evils of a complicated jurisprudence were so evident in the seventh century of the city, that Q. Mucius Scaevola, a great lawyer, when consul, published a scientific elaboration of the civil law. Cicero studied law under him, and his contemporaries, Varus and Aelius Gallus, wrote learned treatises, from which extracts appear in the Digest made under the Emperor Justinian, 528 A.D. Julius Caesar contemplated a complete revision of the laws, but did not live long enough to carry out his intentions. His legislation, so far as he directed his mind to it, was very just. Among other laws established by him was one which ordained that creditors should accept lands as payment for their outstanding debts, according to the value determined by commissioners. In his time the relative value of money had changed, and was greatly diminished. The most important law of Augustus, deserving of all praise, was that which related to the manumission of slaves; but he did not interfere with the social relations of the people after he had deprived them of political liberty. He once attempted, by his Lex Julia, to counteract the custom which then prevailed, of abstaining from legal marriage and substituting concubinage instead, by which the free population declined; but this attempt to improve the morals of the people met with such opposition from the tribes and centuries that the next emperor abolished popular assemblies altogether, which Augustus had feared to do. The senate in the time of the emperors, composed chiefly of lawyers and magistrates, and entirely dependent upon them, became the great fountain of law. By the original constitution the people were the source of power, and the senate merely gave or refused its approbation to the laws proposed; but under the emperors the comitia, or popular assemblies, disappeared, and the senate passed decrees which had the force of laws, subject to the veto of the Emperor. It was not until the time of Septimus Severus and Caracalla (second century A.D.) that the legislative action of the senate ceased, and the edicts and rescripts of emperors took the place of all legislation.
The golden age of Roman jurisprudence was from the birth of Cicero to the reign of the Emperor Alexander Severus, 222 A.D.; before this period it was an occult science, confined to praetors, pontiffs, and patrician lawyers. But in the latter days of the republic law became the fashionable study of Roman youth, and eminent masters arose. The first great lawyer who left behind him important works was Q. Mucius Scaevola, who wrote a treatise in eighteen books on the civil law. "He was," says Cicero, "the most eloquent of jurists and the most learned of orators." This work, George Long thinks, had a great influence on contemporaries and on subsequent jurists, who followed it as a model. It is the oldest work from which there are any excerpts in the Digest.
Servius Sulpicius, the friend of Cicero and his fellow-student in oratory, surpassed his teachers Balbus and Gallus, and was the equal in reputation of the great Mucius Scaevola, the Pontifex Maximus, who said it was disgraceful for a patrician and a noble to be ignorant of the law with which he had to do. Cicero ascribes the great superiority of Servius as a lawyer to the study of philosophy, which disciplined and developed his mind, and enabled him to deduce his conclusions from his premises with logical precision. He left behind him one hundred and eighty treatises, and had numerous pupils, among whom A. Ofilius and Alfenus Varus, Cato, Julius Caesar,