300 HISTORY OF ROMAN LAW 



ation similar to our own. It must for many years, if not always, 

 remain true that Jurisprudence cannot repudiate its relationship or 

 sever its filial connections with Roman Law, except at the cost of 

 great injury to both. 



II 



The connection between Law and Politics is so close that some 

 writers like Montesquieu and Bentham have been equally interested 

 in both sciences. Therefore Roman law in its influence on legal 

 development could not fail to be also a factor in politics, both actual 

 and theoretical. Political conditions may be said to be a resultant 

 of social forces and of abstract ideals, acting and reacting upon one 

 another; and thus political theory is always a factor in actual 

 politics. But the actual and the theoretical should be kept distinct and 

 be separately treated. After the downfall of the Western Empire, and 

 with it of the rule of pure Roman law in many parts of Europe, the 

 history of actual European politics can only be understood by study- 

 ing various concurrent influences, such as Christianity, Teutonic 

 custom, incipient feudalism, etc. Among such ingredients the Roman 

 law must always be counted, but as to how far it may have affected 

 each individual country no general statement can be made. 



In two great constitutions, however, those of the Medieval Empire 

 and of the Medieval Church, the legal example of Rome was para- 

 mount. For five hundred years she had established both in principle 

 and in practice that her princeps should be the supreme potentate 

 of Europe, so that when Charles and Otto were crowned Emperors 

 at Rome it was naturally held that the principate was continued 

 in them. But unfortunately the successors of St. Peter also aspired 

 to fill that same office, on the ground that the supreme head of the 

 Church must be the rightful occupant of the imperial throne. Thus 

 Gregory VII claimed the rights of C$esar as well as those of Pontifex 

 Maximus, and insisted that Henry IV was subject to his jurisdiction. 

 Indeed, the tremendous struggle between Pope and Emperor, which 

 for centuries was the storm-centre of European politics, was simply 

 a long dispute as to which of these rulers was that mighty princeps 

 described in the Digest, who was legibus solutus and whose will had 

 the force of law. The head of the Church got the better of the con- 

 troversy so far as real power was concerned, for it is well known 

 that the imperial authority, though immense in theory, was, except 

 in a few instances, very shadowy in fact. Again in the organization 

 of the Church Roman law had a great effect, for as Professor 

 Harnack has pointed out we have in the great system which 

 centres at the Vatican a fair copy, surviving down to the present 

 day, of the administrative organization of Constantine and Justinian. 1 

 1 Harnack, History of Dogma (trans.), vol. i, p. 122. 



