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justification of the thing itself； it follows that； when the circumstances are removed； the institution
has lost its meaning and its right。 When； e。g。； it is sought to support and defend cloisters on the
grounds that they have served to clear and people the wilderness and by teaching and transcribing
to preserve scholarship； it follows that just in so far as the circumstances are changed； cloisters
have become aimless and superfluous。
In so far as the historic significance； or the historical exposition and interpretation of the origin of
anything is in different spheres at home with the philosophic view of the origin and conception of
the thing one might tolerate the other。 But； in illustration of the fact that they neither here nor in
science； preserve this peaceful attitude； I quote from Mr。 Hugo's Textbook of the History of
Roman Law。 In this work Mr。 Hugo says （5th edition § 53） that 〃Cicero praises the twelve tables
with a side glance at philosophy； 。。。 but the philosopher Phavorinus treats them exactly as many a
great philosopher since has treated positive right。〃 Mr。 Hugo makes the ultimate reply to such a
method as that of Phavorinus； when he says of him that he 〃understood the twelve tables just as
little as the philosophers understood positive right。〃 The correction of the philosopher Phavorinus
by the jurist Sextus Caecilius （Gellius。 〃Noct。 Attic。〃 xx。 1） expresses the lasting and true principle
of the justification of that which is in its content merely positive。 〃Non ignoras；〃 as Caecilius
felicitously remarks to Phavorinus； 〃legum opportunitates et medelas pro temporum moribus；
et pro rerum publicarum generibus； ac pro utilitatum praesentium rationibus； proque
vitiorum； quibus medendum est； fervoribus mutari ae flecti； neque uno statu consistere；
quin； ut facies coeli et maris； ita rerum atque fortunae tempestatibus varientur。 Quid
salubrius visuin est rogatione illa Stolonis； etc。； quid utilius plebiscite Voconio； etc。； quid
tam necessarium existimatum est； quam lex Licinia； etc。？ Omnia tamen haec obliterate et
operta sunt civitatis opulentia；〃 etc。 These laws are Positive so far as they have meaning and
appropriateness under the circumstances； and thus have only an historic value。 For this reason they
are in their nature transient。 Whether the legislator or government was wise or not in what it did for
its own immediate time and circumstances is a matter quite by itself and is for history to say。
History will the more profoundly recognise the action of the legislator in proportion as its estimate
receives support from the philosophic standpoint。 From the vindications of the twelve tables
against the judgment of Phavorinus I shall give further examples； because in them Caecilius
furnishes an illustration of the fraud which is indissolubly bound up with the methods of the
understanding and its reasoning。 He adduces a good reason for a bad thing； and supposes that lie
has in that way justified the thing。 Take the horrible law which permitted a creditor； after the lapse
of a fixed term of respite； to kill a debtor or sell him into slavery。 Nay； further； if there were several
creditors； they were permitted to cut pieces off the debtor； and thus divide him amongst them； with
the proviso that if any one of them should cut off too or too little； no action should be taken against
him。
It was this malaise； it may be noticed； which stood Shakespeare's Shylock in The Merchant of
Venice in such good stead； and was by him most thankfully accepted。 Well； for this law Caecilius
adduces the good argument that by it trust and credit were more firmly secured； and also that； by
reason of the very horror of the law； it never had to be enforced。 Not only does he in his want of
thought fail to observe that by the severity of the law that very intention of securing trust and credit
was defeated； but lie forthwith himself gives an illustration of the way in which the；
disproportionate punishment caused the law to be inoperative； namely through the habit of giving
false witness。 But the remark of Mr。 Hugo that； Phavorinus bad not understood the law is not to
be passed over。 Now any schoolboy can understand the law just quoted； and better than anyone
else would Shylock have understood what was to him of such advantage。 Hence； by 〃understand〃
Mr。 Hugo must mean that form of understanding which consists in brining to the support of a law a
good reason。 Another failure to understand； asserted by Caecilius of Phavorinus； a philosopher at
any rate may without blushing acknowledge： jumentum； which without any arcera was the only
legal way to bring a sick man into court as a witness； was held to mean not only t horse but also a
carriage or wagon。 Further on in this raw Caecilius found more evidence of the excellence and
accuracy of the old statutes； which for the purpose of non…suiting a sick man at court distinguished
not only between a horse and a wagon； but also； as Caecilius explains； between a wagon covered
and cushioned and one not so comfortably equipped。 Thus one would have the choice between
utter severity on one side； and on the other senseless details。 But to exhibit fully the absurdity of
these laws and the pedantic defence offered in their behalf would give rise to an invincible
repugnance to all scholarship of that kind。
But in his manual Mr。 Hugo speaks also of rationality in （connection with Roman law； and I have
been struck with the following remarks。 He first of all treats of the epoch extending from the origin
of the Republic to the twelve tables （§§ 38； 39）； noticing that in Rome people had many wants；
and were compelled in their labour to use draught animals and beasts of burden； as we ourselves
do； and that the ground was an alternation of hill and valley that the city was set upon a hill； etc。
These statements might； perhaps； have answered to the sense of Montesquieu's thought； though in
them it would be well…nigh impossible to find his genius。 But after these preliminary paragraphs； he
goes on to say in § 40； that the condition of the law was still very far from satisfying the highest
demands of reason。 This remark is wholly in place； as the Roman family…right； slavery； etc。； give
no satisfaction to the smallest demands of reason。 Yet when discussing the succeeding epochs；
Mr。 Hugo forgets to tell us in what particulars； if any； the Roman law has satisfactorily met the
highest demands of reason。 Still of the classic jurists。 who flourished in the era of the greatest
expansion of Roman law as a； science； it is said （§ 289） that 〃it has been long since been
observed that the Roman jurists were educated in philosophy；〃 but 〃few know〃 （more will know
now through the numerous editions of Mr。 Hugo's manual） 〃that there is no class of writers； who；
as regards deduction from principles； deserved to be placed beside the mathematicians； and also；
as regards the quite remarkable way in which they develop their conceptions； beside the modern
founder of metaphysic ； as voucher for this assertion is the notable fact that nowhere do so many
trichotomies occur as in the classic jurists and in Kant。〃
This form of logical reasoning； extolled by Le