Here the last line of the verse has but seven syllables, as is the case in the following verse of four lines:

But the eight-syllable lines may be kept throughout, as in the following lament over life’s lovely, pernicious charm, so touching in its expression of the mortal heartbreak of mediaeval monasticism:

IV

Our consideration of the different styles of mediaeval Latin prose and the many novel forms of mediaeval Latin verse has shown how radical was the departure of the one and the other from Cicero and Virgil. Through such changes Latin continued to prove itself a living language. Yet its vitality was doomed to wane before the rivalry of the vernacular tongues. The vivida vis, the capability of growth, had well-nigh passed from Latin when Petrarch was born. In endeavouring to maintain its supremacy as a literary vehicle he was to hold a losing brief, nor did he strengthen his cause by attempting to resuscitate a classic style of prose and metre. The victory of the vernacular was announced in Dante’s De vulgari eloquentia and demonstrated beyond dispute in his Divina Commedia.

A long and for the most part peaceful and unconscious conflict had led up to the victory of what might have been deemed the baser side. For Latin was the sole mediaeval literature that was born in the purple, with its stately lineage of the patristic and the classical back of it. Latin was the language of the Roman world and the vehicle of Latin Christianity. It was the language of the Church and its clergy, and the language of all educated people. Naturally the entire contents of existing and progressive Christian and antique culture were contained in the mediaeval Latin literature, the literature of religion and of law and government, of education and of all serious knowledge. It was to be the primary literature of mediaeval thought; from which passed over the chief part of whatever thought and knowledge the vernacular literatures were to receive. For scholars who follow, as we have tried to, the intellectual and the deeper emotional life of the Middle Ages, the Latin literature yields the incomparably greater part of the material of our study. It has been our home country, from which we have made casual excursions into the vernacular literatures.

These existed, however, from the earliest mediaeval periods, beginning, if one may say so, in oral rather than written documents. We read that Charlemagne caused a book to be made of Germanic poems, which till then presumably had been carried in men’s memories. The Hildebrandslied is supposed to have been one of them.[329] In the Norse lands, the Eddas and the matter of the Sagas were repeated from generation to generation, long before they were written down. The habit, if not the art, of writing came with Christianity and the Latin education accompanying it. Gradually a written literature in the Teutonic languages was accumulated. Of this there was the heathen side, well represented in Anglo-Saxon and the Norse; while in Old High German the Hildebrandslied remains, heathen and savage. Thereafter, a popular and even national or rather racial poetry continued, developed, and grew large, notwithstanding the spread of Latin Christianity through Teutonic lands. Of this the Niebelungenlied and the Gudrun are great examples. But individual still famous poets, who felt and thought as Germans, were also composing sturdily in their vernacular—a lack of education possibly causing them to dictate (dictieren, dichten) rather than to write. Of these the greatest were Wolfram von Eschenbach and Walther von der Vogelweide. With them and after them, or following upon the Niebelungenlied, came a mass of secular poetry, some of which was popular and national, reflecting Germanic story, while some of it was courtly, transcribing the courtly poetry which by the twelfth century flourished in Old French.

Thus bourgeoned the secular branches of German literature. On the other hand, from the time of Christianity’s introduction, the Germans felt the need to have the new religion presented to them in their own tongues. The labour of translation begins with Ulfilas, and is continued with conscientious renderings of Scripture and Latin educational treatises, and also with such epic paraphrase as the Heliand and the more elegiac poems of the Anglo-Saxon Cynewulf.[330] Also, at least in Germany, there comes into existence a full religious literature, not stoled or mitred, but popular, non-academic, and non-liturgical; of which quantities remain in the Middle High German of the thirteenth and fourteenth centuries.[331]

Obviously the Romance vernacular literatures had a different commencement. The languages were Latin, simply Latin, in their inception, and never ceased to be legitimate continuations and developments of the popular or Vulgar Latin of the Roman Empire. But as the speech of children, women, and unlettered people, they were not thought of as literary media. All who could write understood perfectly the better Latin from which these popular dialects were slowly differentiating themselves. And as they progressed to languages, still their life and progress lay among peoples whose ancestral tongue was the proper Latin, which all educated men and women still understood and used in the serious business of life.

But sooner or later men will talk and sing and think and compose in the speech which is closest to them. The Romance tongues became literary through this human need of natural expression. There always had been songs in the old Vulgar Latin; and such did not cease as it gradually became what one may call Romance. Moreover, the clergy might be impelled to use the popular speech in preaching to the laity, or some unlearned person might compose religious verses. Almost the oldest monument of Old French is the hymn in honour of Ste. Eulalie. Then as civilization advanced from the tenth to the twelfth century, in southern and northern France for example, and the langue d’oc and the langue d’oil became independent and developed languages, unlearned men, or men with unlearned audiences, would unavoidably set themselves to composing poetry in these tongues. In the North the chansons de geste came into existence; in the South the knightly Troubadours made love-lyrics. Somehow, these poems were written down, and there was literature for men’s eyes as well as for men’s ears.

In the twelfth century and the thirteenth, the audiences for Romance poetry, especially through the regions of southern and northern France, increased and became diversified. They were made up of all classes, save the brute serf, and of both sexes. The chansons de geste met the taste of the feudal barons; the Arthurian Cycle charmed the feudal dames; the coarse fabliaux pleased the bourgeoisie; and chansons of all kinds might be found diverting by various people. If the religious side was less strongly represented, it was because the closeness of the language to the clerkly and liturgical Latin left no such need of translations as was felt from the beginning among peoples of Germanic speech. Still the Gospels, especially the apocryphal, were put into Old French, and miracles de Notre Dame without number; also legends of the saints, and devout tales of many kinds.

The accentual verses of the Romance tongues had their source in the popular accentual Latin verse of the later Roman period. Their development was not unrelated to the Latin accentual verse which was superseding metrical composition in the centuries extending, one may say, from the fifth to the eleventh. Divergences between the Latin and Romance verse would be caused by the linguistic evolution through which the Romance tongues were becoming independent languages. Nor was this divergence uninfluenced by the fact that Romance poetry was popular and usually concerned with topics of this life, while Latin poetry in the most striking lines of its evolution was liturgical; and even when secular in topic tended to become learned, since it was the product of the academically educated classes. Much of the vernacular (Romance as well as Germanic) poetry in the Middle Ages was composed by unlearned men who had at most but a speaking acquaintance with Latin, and knew little of the antique literature. This was true, generally, of the Troubadours of Provence, of the authors of the Old French chansons de geste, and of such a courtly poet as Chrétien de Troies; true likewise of the great German Minnesingers, epic poets rather, Gottfried von Strassburg, Wolfram von Eschenbach, and Walther von der Vogelweide.

On the other hand, vernacular poetry might be written by highly learned men, of whom the towering though late example would be Dante Alighieri. An instance somewhat nearer to us at present is Jean Clopinel or de Meun, the author of the second part of the Roman de la rose. His extraordinary Voltairean production embodies all the learning of the time; and its scholar-author was a man of genius, who incorporated his learning and the fruit thereof very organically in his poem.

But here, at the close of our consideration of the mediaeval appreciation of the Classics, and the relations between the Classics and mediaeval Latin literature, we are not occupied with the very loose and general question of the amount of classical learning to be found in the vernacular literatures of western Europe. That was a casual matter depending on the education and learning, or lack thereof, of the author of the given piece. But it may be profitable to glance at the passing over of antique themes of story into mediaeval vernacular literature, and the manner of their refashioning. This is a huge subject, but we shall not go into it deeply, or pursue the various antique themes through their endless propagations.

Antique stories aroused and pointed the mediaeval imagination; they made part of the never-absent antique influence which helped to bring the mediaeval peoples on and evoke in them an articulate power to fashion and create all kinds of mediaeval things. But with antique story as with other antique material, the Middle Ages had to turn it over and absorb it, and also had to become themselves with power, before they could refashion the antique theme or create along its lines. All this had taken place by the middle of the twelfth century. As to choice of matter, twelfth-century refashioners would either select an antique theme suited to their handling, or extract what appealed to them from some classic story. In the one case as in the other they might recast, enlarge, or invent as their faculties permitted.

Mediaeval taste took naturally to the degenerate productions of the late antique or transition centuries. The Greek novels seem to have been unknown, except the Apollonius of Tyre.[332] But the congenially preposterous story of Alexander by the Pseudo-Callisthenes was available in a sixth-century Latin version, and was made much of. Equally popular was the debasement and intentional distortion of the Tale of Troy in the work of “Dares” and “Dictys”; other tales were aptly presented in Ovid’s Metamorphoses; and the stories of Hero and Leander, of Pyramus and Thisbe, of Narcissus, Orpheus, Cadmus, Daedalus, were widely known and often told in the Middle Ages.

The mediaeval writers made as if they believed these tales. At least they accepted them as they would have their own audiences accept their recasting, with little reflection as to whether truth or fable. But was the work of the refashioners conscious fiction? Scarcely, when it simply recast the old story in mediaevalizing paraphrase; but when the poet went on and wove out of ten lines a thousand, he must have known himself devising.

The mediaeval treatment of classic themes of history and epic poetry shows how the Middle Ages refashioned and reinspired after their own image whatever they took from the antique. If it was partly their fault, it was also their unavoidable misfortune that they received these great themes in the literary distortions of the transition centuries. Doubtless they preferred encyclopaedic dulness to epic unity; they loved fantasy rather than history, and of course delighted in the preposterous, as they found it in the Latin version of the Life and Deeds of Alexander. As for the Tale of Troy, the real Homer never reached them: and perhaps mediaeval peoples who were pleased, like Virgil’s Romans, to draw their origins from Trojan heroes, would have rejected Homer’s story just as “Dares” and “Dictys,” whoever they were, did.[333] The true mediaeval rifacimenti, to wit, the retellings of these tales in the vernacular, mirror the mediaeval mind, the mediaeval character, and the whole panorama of mediaeval life and fantasy.

The chief epic themes drawn from the antique were the Tales of Troy and Thebes and the story of Aeneas. In verse and prose they were retold in the vernacular literatures and also in mediaeval Latin.[334] We shall, however, limit our view to the primary Old French versions, which formed the basis of compositions in German, Italian, English, as well as French. They were composed between 1150 and 1170 by Norman-French trouvères. The names of the authors of the Roman de Thebes and the Eneas are unknown; the Roman de Troie was written by Benoit de St. More.

These poems present a universal substitution of mediaeval manners and sentiment. For instance, one observes that the epic participation of the pagan gods is minimized, and in the Roman de Troie even discarded; necromancy, on the other hand, abounds. A more interesting change is the transformation of the love episode. That had become an epic adjunct in Alexandrian Greek literature as early as the third century before Christ. It existed in the antique sources of all these mediaeval poems. Nevertheless the romantic narratives of courtly love in the latter are mediaeval creations.

The Eneas relates the love of Lavinia for the hero, most correctly reciprocated by him. The account of it fills fourteen hundred lines, and has no precedent in Virgil’s poem, which in other respects is followed closely. Lavinia sees Aeneas from her tower, and at once understands a previous discourse of her mother on the subject of love. She utters love’s plaints, and then faints because Aeneas does not seem to notice her. After which she passes a sleepless night. The next morning she tells her mother, who is furious, since she favours Turnus as a suitor. The girl falls senseless, but coming to herself when alone, she recalls love’s stratagems, and attaches a letter to an arrow which is shot so as to fall at Aeneas’s feet. Aeneas reads the letter, and turns and salutes the fair one furtively, that his followers may not see. Then he enters his tent and falls so sick with love that he takes to his bed. The next day Lavinia watches for him, and thinks him false, till at last, pale and feeble, he appears, and her heart acquits him; amorous glances now fly back and forth between them.[335]

To have this jaded jilt grow sick with love is a little too much for us, and Aeneas is absurd; but the universal human touches us quite otherwise in the sweet changing heart of Briseida in the Roman de Troie. There is no ground for denying to Benoit of St. More his meed of fame for creating this charming person and starting her upon her career. Following “Dares,” Benoit calls her Briseida; but she becomes the Griseis of Boccaccio’s Filostrato; and what good man does not sigh and love her under the name of Cressid in Chaucer’s poem, though he may deplore her somewhat brazen heartlessness in Shakespeare’s play.

It is not given to all men, or women, in presence or absence, in life and death, to love once and forever. One has the stable heart, another’s fancy is quickly turned. Sometimes, of course, our moral sledge-hammers should be brought to bear; but a little hopeless smile may be juster, as we sigh “she (it is more often “he”) couldn’t help it.” Such was Briseida, the sweet, loving, helpless—coquette? jilt? flirt? these words are all too belittling to tell her truly. Benoit knew better. He took her dry-as-dust characterization from “Dares”; he gave it life, and then let his fair creature do just the things she might, without ceasing to be she.

The abject “Dares” (Benoit may have had a better story under that name) in his catalogue of characters has this: “Briseidam formosam, alta statura, candidam, capillo flavo et molli, superciliis junctis, oculis venustis, corpore aequali, blandam, affabilem, verecundam, animo simplici [O ye gods!], piam.” He makes no other mention of this tall, graceful girl, with her lovely eyes and eyebrows meeting above, her modest, pleasant mien, and simple soul; for simple she was, and therein lies the direst bit of truth about her. For it is simple and uncomplex to take the colour of new scenes and faces, and of new proffered love when the old is far away.

Now see what Benoit does with this dust: Briseida is the daughter of Calchas, a Trojan seer who had passed over to the Greeks, warned by Apollo. He is in the Grecian host, but his daughter is in Troy. Benoit says, she was engaging, lovelier and fairer than the fleur de lis—though her eyebrows grew rather too close together. “Beaux yeux” she had, “de grande manière,” and charming was her talk, and faultless her breeding as her dress. Much was she loved and much she loved, although her heart changed; and she was very loving, simple, and kind:

Calchas wants his daughter, and Priam decides to send her. There is truce between the armies. Troilus, Troy’s glorious young knight, matchless in beauty, in arms second only to his brother Hector, is beside himself. He loves Briseida, and she him. What tears and protestations, and what vows! But the girl must go to her father.

On the morrow the young dame has other cares—to see to the packing of her lovely dresses and put on the loveliest of them; over all she threw a mantle inwoven with the flowers of Paradise. The Trojan ladies add their tears to the damsel’s; for she is ready to die of grief at leaving her lover. Benoit assures us that she will not weep long; it is not woman’s way, he continues somewhat mediaevally.

The brilliant cortège is met by one still more distinguished from the Grecian host. Troilus must turn back, and the lady passes to the escort of Diomede. She was young; he was impetuous; he looks once, and then greets her with a torrential declaration of love. He never loved before!! He is hers, body and soul and high emprize. Briseida speaks him fair:

One need not tell the flash of joy that then was Diomede’s, nor the many troubles that were to be his before at last Briseida finds that her heart has indeed turned to this new lover, always at hand, courting danger for her sake, and at last wounded almost to death by Troilus’s spear. The end of the story is assured in her first discreetly halting words.

Enough has been said to show how far Benoit was from Omers qui fu clers merveillos, and what a story in some thirty thousand lines he has made of the dry data of “Dares” and “Dictys.” His Briseida, with her changing heart, was to rival steadier-minded but not more lovable women of mediaeval fiction—Iseult or Guinevere. And although the far-off echo of Briseid’s name comes from the ancient centuries, none the less she is as entirely a mediaeval creation as Lancelot’s or Tristram’s queen. Thus the Middle Ages took the antique narrative, and created for themselves within the altered lines of the old tale.[338]

The transformation of themes of epic story in vernacular mediaeval versions is paralleled by mediaeval refashionings of historical subjects which had been fictionized before the antique period closed. A chief example is the romance of Alexander the Great. The antique source was the conqueror’s Life and Deeds, written by one who took the name of Alexander’s physician, Callisthenes. The author was some Egyptian Greek of the first century after Christ. His work is preposterous from the beginning to the end, and presents a succession of impossible marvels performed by the somewhat indistinguishable heroes of the story. Its qualities were reflected in the Latin versions, which in turn were drawn upon by the Old French rhyming romancers. The latter mediaevalized and feudalized the tale. Nor were they halted by any absurdity, or conscious of the characterlessness of the puppets of the tale.[339]

Further to pursue the fortunes of antique themes in mediaeval literature would lead us beyond bounds. Yet mention should be made of the handling of minor narratives, as the Metamorphoses of Ovid. They were very popular, and from the twelfth century on, paraphrases or refashionings were made of many of them. These added to the old tale the interesting mediaeval element of the moral or didactic allegory. The most prodigious instance of this moralizing of Ovid was the work of Chrétien Légouais, a French Franciscan who wrote at the beginning of the fourteenth century. In some seventy thousand lines he presented the stories of the Metamorphoses, the allegories which he discovered in them, and the moral teaching of the same.[340]

Equally interesting was the application of allegory to Ovid’s Ars amatoria. The first translators treated this frivolous production as an authoritative treatise upon the art of winning love. So it was perhaps, only Ovid was amusing himself by making a parable of his youthful diversions. Mediaeval imitators changed the habits of the gilded youth of Rome to suit the society of their time. But they did more, being votaries of courtly love. Such love in the Middle Ages had its laws which were prone to deduce their lineage from Ovid’s verses. But its uplifted spirit revelled in symbolism; and tended to change to spiritual allegory whatever authority it imagined itself based upon, even though the authority were a book as dissolute, when seriously considered, as the Ars amatoria. It is strange to think of this poem as the very far off street-walking prototype of De Lorris’s Roman de la rose.

CHAPTER XXXIII

Primitive law is practical; it develops through the adjustment of social exigencies. Gradually, however, in an intelligent community which is progressing under favouring influences, some definite consciousness of legal propriety, utility, or justice, makes itself articulate in statements of general principles of legal right and in a steady endeavour to adjust legal relationships and adjudicate actual controversies in accordance. This endeavour to formulate just and useful principles, and decide novel questions in accordance with them, and enunciate new rules in harmony with the body of the existing law, is jurisprudence, which thus works always for concord, co-ordination, and system.

There was a jurisprudential element in the early law of Rome. The Twelve Tables are trenchant announcements of rules of procedure and substantial law. They have the form of the general imperative: “Thus let it be; If one summons [another] to court, let him go; As a man shall have appointed by his Will, so let it be; When one makes a bond or purchase,[341] as the tongue shall have pronounced it, so let it be.” These statements of legal rules are far from primitive; they are elastic, inclusive, and suited to form the foundation of a large and free legal development. And the consistency with which the law of debt was carried out to its furthest cruel conclusion, the permitted division of the body of the defaulting debtor among several creditors,[342] gave earnest of the logic which was to shape the Roman law in its humaner periods. Moreover, there is jurisprudence in the arrangement of the Laws of the Twelve Tables. Nevertheless the jurisprudential element is still but inchoate.

The Romans were endowed with a genius for law. Under the later Republic and the Empire, the minds of their jurists were trained and broadened by Greek philosophy and the study of the laws of Mediterranean peoples; Rome was becoming the commercial as well as social and political centre of the world. From this happy combination of causes resulted the most comprehensive body of law and the noblest jurisprudence ever evolved by a people. The great jurisconsults of the Empire, working upon the prior labours of long lines of older praetors and jurists, perfected a body of law of well-nigh universal applicability, and throughout logically consistent with general principles of law and equity, recognized as fundamental. These were in part suggested by Greek philosophy, especially by Stoicism as adapted to the Roman temperament. They represented the best ethics, the best justice of the time. As principles of law, however, they would have hung in the air, had not the practical as well as theorizing genius of the jurisconsults been equal to the task of embodying them in legal propositions, and applying the latter to the decision of cases. Thus was evolved a body of practical rules of law, controlled, co-ordinated, and, as one may say, universalized through the constant logical employment of sound principles of legal justice.[343]

The Roman law, broadly taken, was heterogeneous in origin, and complex in its modes of growth. The great jurisconsults of the Empire recognized its diversity of source, and distinguished its various characteristics accordingly. They assumed (and this was a pure assumption) that every civilized people lived under two kinds of law, the one its own, springing from some recognized law-making source within the community; the other the jus gentium, or the law inculcated among all peoples by natural reason or common needs.

The supposed origin of the jus gentium was not simple. Back in the time of the Republic it had become necessary to recognize a law for the many strangers in Rome, who were not entitled to the protection of Rome’s jus civile. The edict of the praetor Peregrinus covered their substantial rights, and sanctioned simple modes of sale and lease which did not observe the forms prescribed by the jus civile. So this edict became the chief source of the jus gentium so-called, to wit, of those liberal rules of law which ignored the peculiar formalities of the stricter law of Rome. Probably foreign laws, that is to say, the commercial customs of the Mediterranean world, were in fact recognized; and their study led to a perception of elements common to the laws of many peoples. At all events, in course of time the jus gentium came to be regarded as consisting of universal rules of law which all peoples might naturally follow.

The recognition of these simple modes of contracting obligations, and perhaps the knowledge that certain rules of law obtained among many peoples, fostered the conception of common or natural justice, which human reason was supposed to inculcate everywhere. Such a conception could not fail to spring up in the minds of Roman jurists who were educated in Stoical philosophy, the ethics of which had much to say of a common human nature. Indeed the idea naturalis ratio was in the air, and the thought of common elements of law and justice which naturalis ratio inter omnes homines constituit, lay so close at hand that it were perhaps a mistake to try to trace it to any single source. Practically the jus gentium became identical with jus naturale, which Ulpian imagined as taught by nature to all animals; the jus gentium, however, belonged to men alone.[344]

Thus rules which were conceived as those of the jus gentium came to represent the principles of rational law, and impressed themselves upon the development of the jus civile. They informed the whole growth and application of Roman law with a breadth of legal reason. And conceptions of a jus naturale and a jus gentium became cognate legal fictions, by the aid of which praetor and jurisconsult might justify the validity of informal modes of contract. In their application, judge and jurist learned how and when to disregard the formal requirements of the older and stricter Roman law, and found a way to the recognition of what was just and convenient. These fictions agreed with the supposed nature and demands of aequitas, which is the principle of progressive and discriminating legal justice. Law itself (jus) was identical with aequitas conceived (after Celsus’s famous phrase) as the ars boni et aequi.

The Roman law proper, the jus civile, had multifarious sources. First the leges, enacted by the people; then the plebiscita, sanctioned by the Plebs; the senatus consulta, passed by the Senate; the constitutiones and rescripta[345] principum, ordained by the Emperor. Excepting the rescripta, these (to cover them with a modern expression) were statutory. They were laws announced at a specific time to meet some definite exigency. Under the Empire, the constitutiones principum became the most important, and then practically the only kind of legal enactment.

Two or three other sources of Roman law remain for mention: first, the edicta of those judicial magistrates, especially the praetors, who had the authority to issue them. In his edict the praetor announced what he held to be the law and how he would apply it. The edict of each successive praetor was a renewal and expansion or modification of that of his predecessor. Papinian calls this source of law the “jus praetorium, which the praetors have introduced to aid, supplement, or correct the jus civile for the sake of public utility.”

Next, the responsa or auctoritas jurisprudentium, by which were intended the judicial decisions and the authority of the legal writings of the famous jurisconsults. Imperial rescripts recognized these responsa as authoritative for the Roman courts; and some of the emperors embodied portions of them in formally promulgated collections, thereby giving them the force of law. Justinian’s Digest is the great example of this method of codification.[346] One need scarcely add that the authoritative writings and responsa of the jurisconsults extended and applied the jus gentium, that is to say, the rules and principles of the best-considered jurisprudence, freed so far as might be from the formal peculiarities of the jus civile strictly speaking. And the same was true of the praetorian edict. The Roman law also gave legal effect to inveterata consuetudo, the law which is sanctioned by custom: “for since the laws bind us because established by the decision of the people, those unwritten customs which the people have approved are binding.”[347]

Simply naming the sources of Roman law indicates the ways in which it grew, and the part taken by the jurisconsults in its development as a universal and elastic system. It was due to their labours that legal principles were logically carried out through the mass of enactments and decisions; that is, it was due to their large consideration of the body of existing law, that each novel decision—each case of first impression—should be a true legal deduction, and not a solecism; and that even the new enactments should not create discordant law. And it was due to their labours that as rules of law were called forth, they were stated clearly and in terms of well-nigh universal applicability.

The Laws of the Twelve Tables showed the action of legal intelligence and the result of much experience. They sanctioned a large contractual freedom, if within strict forms; they stated broadly the right of testamentary disposition. Many of their provisions, which commonly were but authoritative recognitions, were expressions of basic legal principles, the application of which might be extended to meet the needs of advancing civic life. And through the enlargement of this fundamental collection of law, or deviating from it in accordance with principles which it implicitly embodied, the jurists of the Republic and the first centuries of the Empire formed and developed a body of private and public law from which the jurisprudence of Europe and America has never even sought to free itself.

Roman jurisprudence was finally incorporated in Justinian’s Digest, which opens with a statement of the most general principles, even those which would have hung in the air but for the Roman genius of logical and practical application to the concrete instance. “Jus est ars boni et aequi”—it is better to leave these words untranslated, such is the wealth of significance and connotation which they have acquired. “Justitia est constans et perpetua voluntas jus suum cuique tribuendi. Juris praecepta sunt haec: honeste vivere, alterum non laedere, suum cuique tribuere. Jurisprudentia est divinarum atque humanarum rerum notitia, justi atque injusti scientia.”

The first pregnant phrase is from the older jurist Celsus; the longer passage is by the later Ulpian, and may be taken as an expansion of the first. Both the one and the other expressed the most advanced and philosophic ethics of the ancient world. They are both in the first chapter of the Digest, wherein they become enactments. An extract from Paulus follows: “Jus has different meanings; that which is always aequum ac bonum is called jus, to wit, the jus naturale: jus also means the jus civile, that which is expedient (utile) for all or most in any state. And in our state we have also the praetorian jus.” This passage indicates the course of the development of the Roman law: the fundamental and ceaselessly growing core of specifically Roman law, the jus civile; its continual equitable application and enlargement, which was the praetor’s contribution; and the constant application of the aequum ac bonum, observed perhaps in legal rules common to many peoples, but more surely existing in the high reasoning of jurists instructed in the best ethics and philosophy of the ancient world, and learned and practised in the law.

Now notice some of the still general, but distinctly legal, rather than ethical, rules collected in the Digest: The laws cannot provide specifically for every case that may arise; but when their intent is plain, he who is adjudicating a cause should proceed ad similia, and thus declare the law in the case.[348] Here is stated the general and important formative principle, that new cases should be decided consistently and eleganter, which means logically and in accordance with established rules. Yet legal solecisms will exist, perhaps in a statute or in some rule of law evoked by a special exigency. Their application is not to be extended. For them the rule is: “What has been accepted contra rationem juris, is not to be drawn out (producendum) to its consequences,”[349] or again: “What was introduced not by principle, but at first through error, does not obtain in like cases.”[350]

These are true principles making for the consistent development of a body of law. Observe the scope and penetration of some other general rules: “Nuptias non concubitus, sed consensus facit.”[351] This goes to the legal root of the whole conception of matrimony, and is still the recognized starting-point of all law upon that subject. Again: “An agreement to perform what is impossible will not sustain a suit.”[352] This is still everywhere a fundamental principle of the law of contracts. Again: “No one can transfer to another a greater right than he would have himself,”[353] another principle of fundamental validity, but, of course, like all rules of law subject in its application to the qualifying operation of other legal rules.

Roman jurisprudence recognized the danger of definition: “Omnis definitio in jure civili periculosa est.”[354] Yet it could formulate admirable ones; for example: “Inheritance is succession to the sum total (universum jus) of the rights of the deceased.”[355] This definition excels in the completeness of its legal view of the matter, and is not injured by the obvious omission to exclude those personal privileges and rights of the deceased which terminate upon his death.

Thus we note the sources and constructive principles of the Roman law. We observe that while certain of the former might be called “statutory,” the chief means and method of development was the declarative edict of the praetor and the trained labour of the jurisconsults. In these appears the consummate genius of Roman jurisprudence, a jurisprudence matchless in its rational conception of principles of justice which were rooted in a philosophic consideration of human life; matchless also in its carrying through of such principles into the body of the law and the decision of every case.

II

The Roman law was the creation of the genius of Rome and also the product of the complex civilization of which Rome was the kinetic centre. As the Roman power crumbled, Teutonic invaders established kingdoms within territories formerly subject to Rome and to her law—a law, however, which commonly had been modified to suit the peoples of the provinces. Those territories retained their population of provincials. The invaders, Burgundians, Visigoths, and Franks, planting themselves in the different parts of Gaul, brought their own law, under which they continued to live, but which they did not force upon the provincial population. On the contrary, Burgundian and Visigothic kings promulgated codes of Roman law for the latter. And these represent the forms in which the Roman law first passed over into modes of acceptance and application no longer fully Roman, but partly Teutonic and incipiently mediaeval. They exemplify, moreover, the fact, so many aspects of which have been already noticed, of transitional and partly barbarized communities drawing from a greater past according to their simpler needs.

One may say that these codes carried on processes of decline from the full creative genius of Roman jurisprudence, which had irrevocably set in under the Empire in the fourth and fifth centuries. The decline lay in a weakening of the intellectual power devoted to the law and its development. The living growth of the praetorian edict had long since come to an end; and now a waning jurisprudential intelligence first ceased to advance the development of law, and then failed to save from desuetude the achieved jurisprudence of the past. So the jurisprudential and juridical elements (jus) fell away from the law, and the imperial constitutions (leges) remained the sole legal vehicle and means of amendment. The need of codification was felt, and that preserving and eliminating process was entered upon.

Roman codification never became a reformulation. The Roman Codex was a collection of existing constitutions. A certain jurist (“Gregorianus”) made an orderly and comprehensive collection of such as early as the close of Diocletian’s reign; it was supplemented by the work of another jurist (“Hermogenianus”) in the time of Constantine. Each compilation was the work of a private person, who, without authority to restate, could but compile the imperial constitutions. The same method was adopted by the later codifications, which were made and promulgated under imperial decree. There were two which were to be of supreme importance for the legal future of western Europe, the Theodosian Code and the legislation of Justinian. The former was promulgated in 438 by Theodosius II. and Valentinianus. The emperors formally announce that “in imitation (ad similitudinem) of the Code of Gregorianus and Hermogenianus we have decreed that all the Constitutions should be collected” which have been promulgated by Constantine and his successors, including ourselves.[356] So the Theodosian Code contains many laws of the emperors who decreed it.[357] It was thus a compilation of imperial constitutions already in existence, or decreed from year to year while the codification was in process (429-438). Every constitution is given in the words of its original announcement, and with the name of the emperor. Evidently this code was not a revision of the law.

The codification of Justinian began with the promulgation of the Codex in 529. That was intended to be a compilation of the constitutions contained in the previous codes and still in force, as well as those which had been decreed since the time of Theodosius. The compilers received authority to omit, abbreviate, and supplement. The Codex was revised and promulgated anew in 534. The constitutions which were decreed during the remainder of Justinian’s long reign were collected after his death and published as Novellae. So far there was nothing radically novel. But, under Justinian, life and art seemed to have revived in the East; and Tribonian, with the others who assisted in these labours, had larger views of legal reform and jurisprudential conservation than the men who worked for Theodosius. Justinian and his coadjutors had also serious plans for improving the teaching of the law, in the furtherance of which the famous little book of Institutes was composed after the model, and to some extent in the words, of the Institutes of Gaius. It was published in 533.

The great labour, however, which Justinian and his lawyers were as by Providence inspired to achieve was the encyclopaedic codification of the jurisprudential law. Part of the emperor’s high-sounding command runs thus: