第11章

In comparing the Roman Responsa Prudentum with their nearestEnglish counterpart, it must be carefully borne in mind that theauthority by which this part of the Roman jurisprudence wasexpounded was not the bench, but the bar. The decision of a Romantribunal, though conclusive in the particular case, had noulterior authority except such as was given by the professionalrepute of the magistrate who happened to be in office for thetime. Properly speaking, there was no institution at Rome duringthe republic analogous to the English Bench, the Chambers ofimperial Germany, or the Parliaments of Monarchical France. Therewere magistrates indeed, invested with momentous judicialfunctions in their several departments, but the tenure of themagistracies was but for a single year, so that they are muchless aptly compared to a permanent judicature than to a cycle ofoffices briskly circulating among the leaders of the bar. Muchmight be said on the origin of a condition of things which looksto us like a startling anomaly, but which was in fact much morecongenial 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 hierarchyabove them.

It is remarkable that this system did not produce certaineffects which might on the whole have been expected from it. Itdid not, for example, popularise the Roman law -- it did not, asin some of the Greek republics, lessen the effort of intellectrequired for the mastery of the science, although its diffusionand authoritative exposition were opposed by no artificialbarriers. On the contrary, if it had not been for the operationof a separate set of causes, there were strong probabilities thatthe Roman jurisprudence would have become as minute, technical,and difficult as any system which has since prevailed. Again, aconsequence which might still more naturally have been lookedfor, does not appear at any time to have exhibited itself. Thejurisconsults, until the liberties of Rome were overthrown,formed a class which was quite undefined and must have fluctuatedgreatly in numbers; nevertheless, there does not seem to haveexisted a doubt as to the particular individuals whose opinion,in their generation, was conclusive on the cases submitted tothem. The vivid pictures of a leading jurisconsult's dailypractice which abound in Latin literature -- the clients from thecountry flocking to his antechamber in the early morning, and thestudents standing round with their note-books to record the greatlawyer's replies -- are seldom or never identified at any givenperiod with more than one or two conspicuous names. Owing too tothe direct contact of the client and the advocate, the Romanpeople itself seems to have been always alive to the rise andfall of professional reputation, and there is abundance of proof,more particularly in the well-known oration of Cicero, ProMuraena, that the reverence of the commons for forensic successwas apt to be excessive rather than deficient.