The Two First Centuries of Florentine History: The Republic and Parties at the Time of Dante. Fourth Impression.
Dante Alighieri · en
But with changing times, all things changed in Rome. This jurisprudence
revered as sacred, but described by Vico as _made up of formulas and
phrases_, was well adapted to a rude and primitive people. Ideas
had greatly altered in the days of Cicero, who in his speech _pro
Murena_ severely satirises a science which, in his eyes, had become
ridiculous: "res enim sunt parvæ, prope in singulis literis atque
interpunctionibus occupatæ." He looked upon the whole thing as a fraud
designed by the priests to secure themselves a monopoly. Was he in the
right or the wrong? Vico, in examining a similar question, showed that
Cicero was mistaken on this score. Cicero and his contemporaries, he
said, lived in too cultivated an age to comprehend rude and primitive
jurisprudence; they could not grasp its true significance, but
formed their judgment of the ancient laws according to the ideas and
principles of their own times. This view, which was first broached in
the _Scienza Nuova_, was afterwards accepted by many other writers;
and it is now placed beyond a doubt that the primitive Roman law was
not the artifice of a learned few, but was a spontaneous and necessary
growth among the people with whom it had its origin. At first, custom,
clearly distinguished from the law formulated and written, tempered
its rigid severity. Good faith and equity, disregarded and rejected
by the law, found their sanction in custom, were administered by a
separate tribunal, and were always respected, inasmuch as the sentence
pronounced by the officiating magistrate was morally, though not
legally, binding, and was therefore of great efficacy as the genuine
expression of public opinion. The sentence of condemnation could not be
carried out by force; but it made the condemned man infamous, and, as a
last resort, the magistrate could cite the accused before the people,
as the supreme legislator and judge.