242 HISTORY OF LAW 



of the Republic, that is, until about the beginning of the Christian 

 era, when Augustus Csesar added to his various other offices that 

 of Pontifex Maximus, and thus became the supreme law inter- 

 preter as well as the supreme law-maker. It clearly appears that 

 the judicial functions of the priestly office had not fallen into com- 

 plete disuse during the third century B. c., when the first plebeian 

 who attained to the position of Pontifex Maximus announced his 

 readiness to answer legal questions to all instead of confining his 

 exposition of the law to such actual cases as might be brought 

 before him. 



The primitive relations between religious ceremonial observances 

 and legal proceedings cannot be regarded, however, as purely acei- 

 Morality dental, or as resulting alone from the superior education 

 and Law. an d learning of the priests. There is, undoubtedly, some 

 deep-seated connection between the religious and legal significance 

 of words which are common to religion and law, represented in our 

 language by such words as "right" and "just" and "lawful." 

 There was the same suggestive relation between "fas" and "nefas" 

 on the one hand and "jus" and "lex" on the other among the 

 Romans. And in perhaps all modern languages there is the ambigu- 

 ity growing out of the use of words of the same import, as " recht " 

 among the Germans, and " droit " among the French. This connec- 

 tion is hardly to be explained as growing out of the resort to the 

 superstitious or religious nature of men for the purpose of securing 

 their action in legal affairs according to some other rule or guidance 

 than that of self-interest, prejudice, or partisanship. Such assistance 

 the law has in all ages sought in religion. Performance of contractual 

 obligations was secured among primitive people by giving to them 

 a religious sanction. In the Middle Ages compurgation was a recog- 

 nized method of arriving at the truth in the determination of legal 

 disputes, and in modern times we seek to induce witnesses to tell 

 the truth by the administration of oaths, and in the same method 

 we endeavor to influence jurors and judges to perform their duties 

 uprightly and without fear or favor. 



Ethics and morals remain associated with law in modern con- 

 ceptions. Although it may be conceded that the original function 

 Ethics re- ^ *^ e state in regulating human actions which affect 

 cognized the relations of individuals to each other is to secure the 

 by Law. prevalence of social order, nevertheless the general obli- 

 gation to so administer the law as that on the whole moral right and 

 justice shall prevail is a conception too deeply seated to be ignored. 

 Nor has the general recognition of this obligation ceased to have 

 legal significance. It is a popular belief that law was at first sim- 

 ply morality, and that through undue attention given to forms and 

 technicalities of procedure the two have become widely separated 



