Yet, assuming this to be true,
though I think I have shown it to be untrue, the assumption only
strengthens my contention, that our courts have ceased to be true
courts, and are converted into legislative chambers, thereby promising
shortly to become, if they are not already, a menace to order. I take it
to be clear that the function of a legislature is to embody the will of
the dominant social force, for the time being, in a political policy
explained by statutes, and when that policy has reached a certain stage
of development, to cause it to be digested, together with the judicial
decisions relevant to it, in a code. This process of correlation is the
highest triumph of the jurist, and it was by their easy supremacy in
this field of thought, that Roman lawyers chiefly showed their
preeminence as compared with modern lawyers. Still, while admitting this
superiority, it is probably true that the Romans owed much of their
success in codification to the greater permanence of the Roman
legislative tenure of office, and, therefore, stability of
policy,--phenomena which were both probably effects of a slower social
movement among the ancients.
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