Few national societies have had their jurisprudence menacedby this peculiar danger of precocious maturity and untimelydisintegration. It is certainly doubtful whether the Romans wereever seriously threatened by it, but at any rate they hadadequate protection in their theory of Natural Law. For theNatural Law of the jurisconsults was distinctly conceived by themas a system which ought gradually to absorb civil laws, withoutsuperseding them so long as they remained unrepealed. There wasno such impression of its sanctity abroad, that an appeal to itwould be likely to overpower the mind of a judge who was chargedwith the superintendence of a particular litigation. The valueand serviceableness of the conception arose from its keepingbefore the mental vision a type of perfect law, and from itsinspiring the hope of an indefinite approximation to it, at thesame time that it never tempted the practitioner or the citizento deny the obligation of existing laws which had not yet beenadjusted to the theory. It is important too to observe that thismodel system, unlike many of those which have mocked men's hopesin later days, was not entirely the product of imagination. Itwas never thought of as founded on quite untested principles. Thenotion was that it underlay existing law and must be looked forthrough it. Its functions were in short remedial, notrevolutionary or anarchical. And this, unfortunately, is theexact point at which the modern view of a Law of Nature has oftenceased to resemble the ancient.
The other liability to which the infancy of society isexposed has prevented or arrested the progress of far the greaterpart of mankind. The rigidity of primitive law, arising chieflyfrom its early association and identification with religion, haschained down the mass of the human race to those views of lifeand conduct which they entertained at the time when their usageswere first consolidated into a systematic form. There were one ortwo races exempted by a marvellous fate from this calamity, andgrafts from these stocks have fertilised a few modern societies,but it is still true that, over the larger part of the world, theperfection of law has always been considered as consisting inadherence to the ground plan supposed to have been marked out bythe original legislator. If intellect has in such cases beenexercised on jurisprudence, it has uniformly prided itself on thesubtle perversity of the conclusions it could build on ancienttexts, without discoverable departure from their literal tenour.
I know no reason why the law of the Romans should be superior tothe laws of the Hindoos, unless the theory of Natural Law hadgiven it a type of excellence different from the usual one. Inthis one exceptional instance, simplicity and symmetry were keptbefore the eyes of a society whose influence on mankind wasdestined to be prodigious from other causes, as thecharacteristics of an ideal and absolutely perfect law. It isimpossible to overrate the importance to a nation or professionof having a distinct object to aim at in the pursuit ofimprovement. The secret of Bentham's immense influence in Englandduring the past thirty years is his success in placing such anobject before the country. He gave us a clear rule of reform.
English lawyers of the last century were probably too acute to beblinded by the paradoxical commonplace that English law was theperfection of human reason, but they acted as if they believed itfor want of any other principle to proceed upon. Bentham made thegood of the community take precedence of every other object, andthus gave escape to a current which had long been trying to findits way outwards.
It is not an altogether fanciful comparison if we call theassumptions we have been describing the ancient counterpart ofBenthami**. The Roman theory guided men's efforts in the samedirection as the theory put into shape by the Englishman; itspractical results were not widely different from those whichwould have been attained by a sect of law-reformers whomaintained a steady pursuit of the general good of the community.
It would be a mistake, however, to suppose it a consciousanticipation of Bentham's principles. The happiness of mankindis, no doubt, sometimes assigned, both in the popular and in thelegal literature of the Romans, as the proper object of remediallegislation, but it is very remarkable how few and faint are thetestimonies to this principle compared with the tributes whichare constantly offered to the overshadowing claims of the Law ofNature. It was not to anything resembling philanthropy, but totheir sense of simplicity and harmony -- of what theysignificantly termed "elegance" -- that the Roman jurisconsultsfreely surrendered themselves. The coincidence of their labourswith those which a more precise philosophy would have counselledhas been part of the good fortune of mankind.
