327 



not until the fourth century that the Emperors began to declare that 

 rescripts issued in single cases were not to be regarded as establishing 

 general rules. Then, indeed, legislation became almost the sole factor 

 of legal development. This change, however, was not the result of 

 a progressive evolution; it was a symptom of degeneration. Judicial 

 decisions ceased to be regarded because jurisprudence had sunk to so 

 low an eb"b that the decisions were not worth regarding. The older 

 case-law, however, stood in undiminished honor and authority. Much 

 of it was saved in Justinian's Digest, some of it in his Codex. Only 

 in these casuistic portions of Justinian's compilation were there seeds 

 of life; and from the close of the eleventh to the close of the nine- 

 teenth century these seeds have yielded rich and renewed harvests. 



The subject assigned me, with which I have been taking certain 

 liberties, is not European legal history nor legal history in general, nor 

 comparative jurisprudence, but Roman legal history; and for this 

 reason I have thus far confined myself to indicating how largely the 

 study of English legal history may be expected to help us to a deeper 

 and truer comprehension of Roman legal history. I trust, in closing, 

 that I may be permitted to take a further liberty with my theme, 

 and to indicate that a careful study of Roman legal history will be of 

 great service to the Englishman or American who desires to compre- 

 hend his own legal history. I lay little stress on the point that we may 

 thus recognize what has been borrowed; I desire chiefly to insist 

 upon the point that we may thus better appreciate the true character 

 of English legal history as an independent development. Furnished 

 with a knowledge of the Roman law and of its development, the 

 English investigator will more accurately gauge by comparison the 

 excellencies and the defects of the English law. He may not find, as is 

 commonly claimed, that the Roman law is more scientific, a claim 

 which I take to mean that its broader generalizations are more cor- 

 rect, but he will certainly find that the Roman law is more artistic. 

 The sense of relation, of proportion, of harmony, which the Greeks 

 possessed and which they utilized in shaping matter into forms of 

 beauty, the Romans possessed also, but the material in which they 

 wrought was the whole social life of man. There was profound truth 

 in the saying of the Roman jurist that law was the " Ars boni et 

 aequi." 



The comparative student will find also that while the English law 

 has developed in certain directions further than the Roman, the 

 Roman law in certain other respects had attained, at the close of the 

 republican period, a development which seems to go beyond ours. 

 This is true, for instance, in the whole field of commercial dealings. 

 The great regard paid in all commercial transactions to good faith 

 and the instincts of an honest tradesman, and in particular the 

 abandonment by the Romans, two thousand years ago, of the primi- 



