856 THEODORE MOMMSEN". 



the Equitable Jurisdiction," p. 1'6.) The same relation, then, that we 

 can follow and observe between the lord chief justices and the lord 

 chancellors in Eno-land; the same relation was on a wider scale and 

 more comprehensivel}^ that of the tribune to the other magistracies 

 in Home. Just as the chancellor was the natural complement and 

 check to the lord chief justice, and not an abnormal or inorganic 

 institution in the s^ystem of English law; just as John Selden's (per- 

 haps good-natured) sneer at the chancellor's law is based on a total 

 misconception of the real and inevitable function of that English 

 magistrac}", even so Mommsen's sarcasms and sneers at the Roman 

 tri))unate only prove his total misconception of this the most important 

 institution of ancient Rome. The tribunate, far from being "" al)nor- 

 mal " or "inorganic," "strange," or a "pis aller," was the most 

 natural, the most organic, the most inevitable of all Roman institu- 

 tions. It stood in the domain of Roman public law in the same rela- 

 tion to the other magistracies as does in the domain of Roman private 

 law a res facti to a res juris; or as does in the system of Roman private 

 law the interdictum to the actio, or any Frretorian legal institution to 

 an institution of the jus civile. 



On taking a broad view of Roman history and assuming, as all of us 

 do, that a study of that famous nation ought to be not only attractive 

 but also instructive, we soon see that there are especially three points, 

 in Roman history that appeal more particularly to our interests. 

 These points are, in the first place, the marvelous political and military 

 success of the Romans, in virtue of which they became the conquer- 

 ors and rulers of an empire such as had never been before and has 

 never been after — an empire consisting of the most civilized nations in 

 the world; secondly, the surprising fact that the Romans, who held 

 trade and commence in disdain, should have succeeded in building up 

 a system of law which, especially in its sections dealing with trade and 

 commerce, has proved to be of the same surpassing excellence that we 

 admire in Greek art; and, thirdly, the Roman political constitution, 

 which both from the success of ancient Rome and from the imitation 

 of that constitution by the mightiest body politic of mediajval and 

 modern times — by the Catholic Church — calls upon our closest atten- 

 tion and awakens our deepest interest. 



If, now, we turn to Mommsen to obtain from him light on these 

 three subjects, we are disappointed in every one case. The problem 

 of Roman law he dismisses witli another sneer, saying, literall}^ that 

 there is nothing amazing in the fact that "a sound nation had a sound 

 law," although he himself points out that the Romans did not excel in 

 criminal law, in spite of their "soundness." As to the second problem, 

 the military and political success of the Romans, we derive little, if 

 any, light from the treatment of Mommsen. We still stand before 

 the Fortuua Romanorum as before the Sphinx, and we do not even 



