This section of the book is from the "A Man and His Money" book, by Harvey Reeves Calkins , published in 1915.
Thus far we have considered the law of ownership as derived from the Roman civil code. As such it has a keen human interest and high educational value, for the same reason that it is of interest and value to note the classical derivation of common words in modern speech. If, however, the doctrine of ownership were merely the perpetuation of an ancient code, and if our interest were merely that of the studious schoolman, tracing out historic beginnings, the discussion would be wholly academic and without vital relation to our present subject. But such is by no means the case. It is not the civil code of Rome that compels us to mark the meaning of ownership under the Roman law and trace it to its brutal beginning in an early Aryan cave, but it is the pagan philosophy which took the civil code of Rome and exalted it as an expression of the divine nature, and, as such, bequeathed it to succeeding generations—that is the commanding reason why righteous men should pause to consider it, and that is the tragedy of Christian ethics in our modern jurisprudence.
A parenthetic word may be inserted here. It were unmeasured folly, and the advertisement of crass ignorance, to even seem to suggest that Roman law has been inimical to the advancement of Christianity. On the contrary, it was the strong fabric of Roman law that first made possible the missionary triumphs of the early church, and afterward gave cohesion and authority to Christian institutions. It was the revival of Roman law, which, beginning with the twelfth century, changed the chaos of mediaeval Europe into the ordered life of modern governments, and it is the supremacy of general legal principles, derived from that same body of Roman law, which insures stability and justice throughout the courts of Christendom to-day. That ancient law will abide in imperishable honor!
But seemingly good law may rest upon doubtful foundations, just as fair conduct may be underlaid by unlovely motives. The legal doctrine of ownership may be just in its working, as from man to man, although the ethical foundation of that doctrine is itself unrighteous, and, indeed, lawless. Robin Hood and his men were punctilious in honor as among themselves; but were they therefore men of honor? Can pagan law rob God of all primary dominion, and yet teach men the ethics of ownership as among themselves? This is the very point where the Stoic philosophy exalts unrighteousness, for Stoicism touched the Roman law at a critical moment in its history, and profoundly influenced its whole future development. The way of it was this:
When, little by little, the Roman soldier extended the borders of the Roman state he also extended the authority of the Roman law. The Latin towns near Rome first acknowledged the supremacy of the city on the Tiber, and this was soon followed by the conquest of the whole of Italy. Then came the victorious campaign against Carthage, which spread the Roman legions and the Roman law over northern Africa. The subjugation of Macedonia and Greece, within a generation after the fall of Carthage, proclaimed the world-program of militant Rome. During the degenerate latter days of the republic, and the early days of the empire, the expansion of Rome continued, until, in the reign of Augustus Caesar, Roman dominion extended from the Atlantic Ocean to the Euphrates valley, and from the forests of Britain to the sand-tracts of Africa. In the earlier years of this vast expansion, when Roman magistrates attempted to administer Roman law among alien races, they discovered that these various nations had customs and laws, of their own which they refused to abandon. The good sense of Roman administrators recognized that it was both just and wise to acknowledge the authority of these various civil codes, just as, to-day, an English civil magistrate in India will recognize the validity of Hindu and Mohammedan law in dealing with Hindu and Mohammedan subjects. It thus came about that the old civil law of Rome was greatly expanded and modified by contact with what was called "The Laws of the Nations."
And then came a remarkable development. About the time that Attica and the Peloponnesus were compelled to acknowledge the Roman sovereignty, the Stoic philosophy was in the ascendancy throughout the whole of Greece, and Stoicism took immediate and lasting hold of the Roman mind. To the facile Greek mind, ever seeking "either to tell or to hear some new thing," this philosophy was little more than another system of introspective thought; it had no large result in actual organized society. But to the constructive mind of the Roman it gave the necessary framework for the development of a practical system of morality, and, in particular, a really great system of law. The Roman lawyer by native instinct became a Stoic. Woodrow Wilson, in an illuminating chapter of his bulky volume, The State, in which he outlines the development of Roman dominion and Roman law, writes thus: "That philosophy [Stoicism] was of just the sort to commend itself to the Roman. Its doctrines of virtue and courage and devotion seemed made for his practical acceptance; its exaltation of Reason was perfectly congenial to his native habit. But its contribution to the thought of the Roman lawyer was its most noteworthy product in Rome."
Without attempting a close survey, or even a general synopsis of the Stoic philosophy, we have only to mark clearly its cardinal doctrine, namely, "the Law of Nature," and we shall immediately recognize its tremendous influence upon Roman jurisprudence, and hence upon modern civilization. Stoicism taught that the universe is pervaded by an all-present soul, or power, "which was looked upon not only as a dynamical force producing motion, but as a rational principle producing order and perfection." This all-pervading soul, or power, according to the Stoics, is Universal Reason, and the manner in which it reveals itself, or works, both in the external physical world and in the inward mind of men, is the law of nature. Therefore, concluded the Stoics, the highest duty of man is to observe this law and live in accordance with it.
As may be readily understood, it was this "Law of Nature" which at once appealed to the mind of the Roman jurists. Their conceptions of law had already been broadened; they had learned to acknowledge the validity of the provincial codes, as well as of their own civil code; why should there not be a primary principle of universal law which was beyond and above them both? With logical consistency they argued that all right human law must emanate from this unchanging law of nature, and, therefore, whether civil or provincial, the whole system of Roman law had its real authority, not in a written code, but in nature itself. From the days when Cicero pleaded in Roman law courts until Roman law was finally codified by the emperor Justinian in the year A. D. 530, the Stoic "Law of Nature" was the fountain-head of Roman jurisprudence.
That there was a certain moral grandeur in the Stoicism of the Romans is perfectly apparent, just as there is a certain persistent truth in the similar though more subtle pantheism of the Hindus. But the Stoic doctrine of the Universal Reason, and the Hindu doctrine of the Divine Essence, are alike revealed in their poor pagan emptiness when we view them side by side with the Christian doctrine of the One Eternal Father. Instance the bald paganism which seeks to deify the Roman law of property, whether "real" or "personal." In the second book of the Institutes of Justinian, in the chapter treating of "Things," we read this: "Precious stones, gems, and other things, found upon the seashore, become immediately, by the law of nature, the property of the finder." With this characteristic uplift of pagan lawlessness, compare the absolute dominion of Jehovah God, when he says, "The silver is mine, and the gold is mine, saith the Lord of hosts."
Ours is not a war of words. We raise no question as to the legal and rightful human custody of gems found upon the seashore, or precious metals from the hills, or lands, or houses, or any other thing that men desire to possess. We have no quarrel with that human and animal instinct which affirms that these precious objects "belong" to their possessors. Our issue is with a godless and pagan philosophy, which, in the face of the absolute and necessary dominion of the Creator, exalts grasping human covetousness into human ownership, and then, with unmeasured effrontery, names this pilfered ownership a product of that Universal Reason which pervades the world! The continued exaltation of paganism frustrates the larger purposes of Christianity, and this, we repeat, is the tragedy of Christian ethics in our modern jurisprudence.
The Roman doctrine of ownership, from which is derived our own common law of property, appears to work no actual injustice as from man to man; its derived rights of title and tenure have been for the well-being of orderly society; nevertheless the pervasive and practical atheism in which this doctrine was conceived, and which still surrounds it as with an atmosphere, has nullified the actual meaning of faith among millions of Christian men. The result is an open scandal which all the world may see. The royal doctrine of stewardship, the only doctrine of property which Christian men can intelligently hold, is but rarely recognized in the practical administration of their affairs. That pagan Man with the Lance, whose purpose is to hinder and not to help, still stands guard in all our courts of law.