[Sidenote: Early legislation.]

[Sidenote: The Twelve Tables.]

Ingenious writers, like Vico and Niebuhr, have extended their researches to the government of the kings, and advanced many plausible speculations; but the earliest legislation worthy of notice, was the celebrated code called the Twelve Tables, framed from the reports of the commissioners whom the Romans sent to Athens and other Greek states, to collect what was most useful in their legal systems. But scarcely any part of the civil law contained in the Twelve Tables has come down to us. All we know with certainty, is that it was the intention of the decemviral legislation to bring the estates into closer connection, and to equalize the laws for both. Nor do the provisions of the decemviral code, with which we are acquainted, show that enlightened regard to natural justice which characterized jurisprudence in its subsequent development. It allowed insolvent debtors to be treated with great cruelty; they could be imprisoned for sixty days, loaded with chains, and then might be sold into foreign slavery. It sanctioned a barbarous retaliation--an eye for an eye, and a tooth for a tooth. But it gave a redress for lampoons or libels, allowed an appeal from the magistrate to the people, and forbid capital punishment except by a decision of the centuries. [Footnote: Lord Mackenzie, part 6.] Niebuhr maintains, [Footnote: Lecture 25.] in his lectures on the History of Rome, that the Twelve Tables conceded the right to every _pater familias_ of making a will, by which regulation the child of a plebeian, by a patrician mother, could succeed to his father's property, which was of great importance, and a great step in natural justice. It is supposed that the most important part of the decemviral legislation was the _jus public.u.m_, [Footnote: Cicero, _De Legibus_.] or that which refers to the Roman const.i.tution. The Twelve Tables obtained among the Romans a peculiar reverence; they were committed to memory by the young; they were transcribed with the greatest care, and were considered as the fountain of right. They were approved by the _comitia centuriata_, which was the supreme authority, and in the time of Appius Claudius was composed of patricians alone. If Niebuhr is right in his statement that the power of making wills was given to plebeians, it shows a greater liberality on the part of patricians than what they generally have had credit for, and is hardly to be reconciled with the statement of Lord Mackenzie, that all marriages between patricians and plebeians were prohibited by the new code.

[Sidenote: The Twelve Tables the basis of Roman law.]

[Sidenote: Progress of Roman Law.]

The laws of the Twelve Tables were the basis of all the laws, civil and religious. But the edicts of the praetors, who were the great equity judges, as well as the common-law magistrates, [Footnote: Maine's _Ancient Law_, p. 67.] proclaimed certain changes which custom and the practice of the courts had introduced, and these, added to the _leges populi_ or laws proposed by the consul and pa.s.sed by the centuries, the _plebiscita_ or laws proposed by the tribunes and pa.s.sed by the tribes, and the _senatus consulta_, gradually swelled the laws to a great number. Three thousand plates of bra.s.s, containing these various laws, were deposited in the capitol. [Footnote: Suetonius, _In Vespa_.] Subtleties and fictions were introduced by the lawyers to defeat the written statutes, and jurisprudence became complicated, even in the time of Cicero. The opinions of eminent lawyers were even adopted by the legal profession, and were recognized by the courts. The evils of a complicated jurisprudence were so evident in the seventh century of the city, that Q. Mucius Scaevola, a great lawyer, when consul, published a scientific elaboration of the civil law. Cicero studied law under him, and his contemporaries, Alfenus Varus and Aeulius Gallus, wrote learned treatises, from which extracts appear in the Digest. Caesar contemplated a complete revision of the laws, but did not live long enough to carry out his intentions. His legislation, so far as he directed his mind to it, was very just. Among other laws was one which ordained that creditors should accept lands as payment for their outstanding debts, according to the value determined by commissioners.

In his time, the relative value of money had changed, and was greatly diminished. The most important law of Augustus, was the _lex oelia sentia_, deserving of all praise, which related to the manumission of slaves. But he did not interfere with the social relations of the people after he had deprived them of political liberty. He once attempted, by his _Lex Julia et Papia Poppaea_, to counteract the custom which then prevailed, of abstaining from legal marriage and subst.i.tuting concubinage instead, by which the free population declined; but this attempt to improve the morals of the people met with such opposition from the tribes or centuries, that the next emperor abolished popular a.s.semblies altogether, which Augustus feared to do. The Senate, in the time of the emperors, composed chiefly of lawyers and magistrates, and entirely dependent upon them, became the great fountain of law. By the original const.i.tution, the people were the source of power, and the Senate merely gave or refused its approbation to the laws proposed, but under the emperors the comitia disappeared, and the Senate pa.s.sed decrees, which have the force of laws, subject to the veto of the emperor. It was not until the time of Septimus Severus and Caracalla, that the legislative action of the Senate ceased, and the edicts and rescripts of emperors took the place of all legislation.

[Sidenote: Q. Mucius Scaevola.]

The golden age of Roman jurisprudence was from the birth of Cicero to the reign of Alexander Severus. Before this period it was an occult science, confined to praetors, pontiffs, and patrician lawyers. There were no books nor schools to teach its principles. But in the latter days of the republic law became the fashionable study of Roman youth, and eminent masters arose. The first great lawyer who left behind him important works, was the teacher of Cicero, Q. Mucius Scaevola, who wrote a treatise in eighteen books on the civil law. "He was," [Footnote: Cicero, _De Or._ i. 39.] says Cicero, "the most eloquent of jurists, and the most learned of orators." This work, George Long thinks, had a great influence on contemporaries and on subsequent jurists, who followed it as a model. It is the oldest work from which there are any excerpts in the Digest.

[Sidenote: Servius Sulpicius.]

[Sidenote: Labeo.]

[Sidenote: Gaius.]

[Sidenote: Papinian.]

[Sidenote: Paulus.]

Servius Sulpicius, the friend of Cicero, and fellow-student of oratory, surpa.s.sed his teachers Balbus and Gallus, and was the equal in reputation of the great Mucius Scaevola, the Pontifex Maximus, who said it was disgraceful for a patrician and a n.o.ble to be ignorant of the law with which he had to do. Cicero ascribes his great superiority as a lawyer to the study of philosophy, which disciplined and developed his mind, and enabled him to deduce his conclusions from his premises with logical precision. He left behind him one hundred and eighty treatises, and had numerous pupils, among whom A. Ofilius and Alfenus Varus, Cato, Caesar, Antony, and Cicero, were great lawyers. Labeo, in the time of Augustus, wrote four hundred books on jurisprudence, spending six months in the year in giving instruction to his pupils, and in answering legal questions, and the other six months in the country in writing books.

Like all the great Roman jurists, he was versed in literature and philosophy, and so devoted to his profession that he refused political office. His rival, Capito, was equally learned in all departments of the law, and left behind him as many treatises as Labeo. These two jurists were the founders of celebrated schools, like the ancient philosophers, and each had distinguished followers. Masurius Sabinus Gaius and Pomponius, were of the school of Capito. M. Cocceius Nerva, Semp.r.o.nius Proculus, and Juventius Celsus, were of the school of Labeo. Gaius, who flourished in the time of the Antonines, was a great legal authority; and the recent discovery of his Inst.i.tutes has revealed the least mutilated fragment of Roman jurisprudence which exists, and one of the most valuable, and sheds great light on ancient Roman law. It was found in the library of Verona. No Roman jurist had a higher reputation than Papinian, who was _praefectus praetorio_ under Septimius Severus, an office which made him only secondary to the emperor--a sort of grand vizier--whose power extended over all departments of the state. He was beheaded by Caracalla. The great commentator Cujacius, declares that he was the first of all lawyers who have been, or who are to be; that no one ever surpa.s.sed him in legal knowledge, and no one will ever equal him. Paulus was his contemporary, and held the same office as Papinian.

He was the most fertile of Roman law-writers, and there is more taken from him in the Digest than from any other jurist, except Ulpian. There are two thousand and eighty-three excerpts from this writer, one sixth of the whole Digest. No legal writer, ancient or modern, has handled so many subjects. In perspicuity, he is said to be inferior to Ulpian, one of the most famous of jurists, who was his contemporary. He has exercised a great influence on modern jurisprudence from the copious extracts of his writings in Justinian's Digest. He was the chief adviser of Alexander Severus, and like Paulus was _praefectus praetorio_. The number of excerpts in the Digest from him, is said to be two thousand four hundred and sixty-two, and they form a third part of it. Some fragments of his writings remain. The last of the great civilians a.s.sociated with Gaius, Papinian, Paulus, and Ulpian, as oracles of jurisprudence, was Modestinus, who was a pupil of Ulpian. He wrote both in Greek and Latin. There are three hundred and forty-five excerpts in the Digest from his writings, the t.i.tles of which show the extent and variety of his labors. [Footnote: These facts are drawn from the different articles of George Long, in _Smith's Dictionary_.]

[Sidenote: The profession of law.]

These great lawyers shed great glory on the Roman civilization. In the earliest times men sought distinction on the fields of battle, but in the latter days of the republic honor was conferred for forensic ability. The first pleaders of Rome were not jurisconsults, but aristocratic patrons looked after their clients. But when law became complicated, a cla.s.s of men arose to interpret it, and these men were held in great honor, and reached, by their services, the highest offices--like Cicero and Hortensius. No remuneration was given originally for forensic pleading, beyond the services which the client gave to a patron, but gradually the practice of the law became lucrative. Hortensius, as well as Cicero, gained an immense fortune. He had several villas, a gallery of paintings, a large stock of wines, parks, fish-ponds, and aviaries. Cicero had villas in all parts of Italy; a house on the Palatine with columns of Numidian marble, and a fortune of twenty millions of sesterces, equal to $800,000. Most of the great statesmen of Rome, in the time of Cicero, were either lawyers or generals. Cra.s.sus, Pompey, P. s.e.xtus, M. Marcellus, P. Clodius, Calidius, Messala Niger, Asinius Pollio, C. Cicero, M. Antonius, Caesar, Calvus, Caelius, Brutus, Catulus, Messala Cervirus, were all celebrated for their forensic efforts. Candidates for the bar studied four years under a distinguished jurist, and were required to pa.s.s a rigorous examination. The judges were chosen from members of the bar, as well as, in later times, the senators. The great lawyers were not only learned in the law, but possessed great accomplishments. Varro was a lawyer, and was the most learned man that Rome produced. But, under the emperors, the lawyers were chiefly distinguished for their legal attainments, like Paulus and Ulpian.

[Sidenote: Roman jurists.]

During this golden age of Roman jurisprudence, many commentaries were written on the Twelve Tables, the Perpetual Edict, the Laws of the People, and the Decrees of the Senate, as well as a vast ma.s.s of treatises on every department of the law, most of which have perished.

The Inst.i.tutes of Gaius, which have reached us nearly in their original form, are the most valuable which remain, and have thrown great light on some important branches previously involved in obscurity. Their use in explaining the Inst.i.tutes of Justinian, is spoken of very highly by Mackenzie, since the latter are mainly founded on the long lost work of Gaius. A treatise of Ulpian, preserved in the Vatican, ent.i.tled "_t.i.tuli ex corpore Ulpiani_" also contains valuable information, as well as the "_Receptae Sententiae_" of Julius Paulus, his great contemporary, both of which works, as well as others of inferior importance, were lately published at Rome by Dr. Gneist, called "_Corpus Juris Romani Antejustinianii_." [Footnote: Mackenzie, p.

16.] The great lawyers who flourished from Trajan to Alexander Severus, like Gaius, Ulpian, Paulus, Papinian, and Modestinus, had no successors who can be compared with them, and their works became standard authorities in the courts of law.

After the death of Alexander Severus no great accession was made to Roman law, until Theodosius II. caused the const.i.tutions, from Constantine to his own time, to be collected and arranged in sixteen books. This was called the Theodosian Code, which in the West was held in high esteem, although superseded shortly after in the East by the Justinian Code.

[Sidenote: Justinian labors.]

To Justinian belongs the immortal glory of reforming the jurisprudence of the Romans. "In the s.p.a.ce of ten centuries," says Gibbon, "the infinite variety of laws and legal opinions had filled many thousand volumes, which no fortune could purchase, and no capacity could digest.

Books could not easily be found and the judges, poor in the midst of riches, were reduced to the exercise of their illiterate discretion."

[Footnote: Gibbon, ch. 44.] Justinian determined to unite in one body all the rules of law, whatever may have been their origin, and in the year 528, appointed ten jurisconsults, among whom was the celebrated Tribonian, to select and arrange the imperial const.i.tutions, leaving out what was obsolete or useless or contradictory, and to make such alterations as the circ.u.mstances required. This was called the _Code_, divided into twelve books, and comprising the const.i.tutions from Hadrian to Justinian. This was published in fourteen months after it was undertaken.

[Sidenote: Tribonian.]

[Sidenote: The code of Pandects.]

Justinian authorized Tribonian, then quaestor, "_vir magnificus magisteria dignitate inter agentes decoratus_," for great t.i.tles were now given to the officers of the crown, to prepare, with the a.s.sistance of seventeen a.s.sociates, a collection of extracts from the writings of the most eminent jurists, so as to form a body of law for the government of the empire, with power to select and omit and alter; and this immense work was done in three years, and published under the t.i.tle of Digest or Pandects. "All the judicial learning of former times," says Lord Mackenzie, "was laid under contribution by Tribonian and his colleagues.

Selections from the works of thirty-nine of the ablest lawyers, scattered over two thousand separate treatises, were collected in one volume; and care was taken to inform posterity that three millions of lines were abridged and reduced, in these extracts, to the modest number of one hundred and fifty thousand. Among the selected jurists, only three names belonged to the age of the republic; the civilians who flourished under the first emperors are seldom appealed to; so that most of the writers, whose works have contributed to the Pandects, lived within a period of one hundred years. More than a third of the whole Pandects is from Ulpian, and next to him, the princ.i.p.al writers are Paulus, Papinian, Salvius Julia.n.u.s, Pomponius, Q. Cervidius Scaevola, and Gaius. Though the variety of subjects is immense, the Digest has no claims to scientific arrangement. It is a vast cyclopedia of heterogeneous law badly arranged; every thing is there, but every thing is not in its proper place." [Footnote: Mackenzie, p. 25.]

[Sidenote: The Inst.i.tutes.]

But neither the Digest nor the Code was adapted to elementary instruction. It was necessary to prepare a treatise on the principles of Roman law. This was entrusted to Tribonian, and two professors, Theophilus and Dorotheus. It is probable that Tribonian merely superintended the work, which was founded chiefly on the Inst.i.tutes of Gains, and was divided into four books, and has been universally admired for its method and elegant precision. It was intended merely as an introduction to the Pandects and the Code.

[Sidenote: The Novels of Justinian.]

The _Novels of Justinian_ were subsequently published, being the new ordinances of the emperor, and the changes he thought proper to make, and are therefore a high authority.

The Code, Pandects, Inst.i.tutes, and Novels of Justinian, comprise the Roman law, as received in Europe, in the form given by the school of Bologna, and is called the "_Corpus Juris Civilis_." "It was in that form," says Savigny, "that the Roman law became the common law of Europe; and when, four centuries later, other sources came to be added to it, the _Corpus Juris_ of the school of Bologna had been so universally received, and so long established as a basis of practice, that the new discoveries remained in the domain of science, and served only for the theory of the law. For the same reason, the Anti-Justinian law is excluded from practice." [Footnote: Savigny, _Droit Romani_, vol. i. p. 68.] After Justinian, the old texts were left to moulder as useless though venerable, and they have nearly all disappeared. The Code, the Pandects, and the Inst.i.tutes, were declared to be the only legitimate authority and alone were admitted to the tribunals or taught in the schools. The rescripts of the early emperors recognized too many popular rights to suit the despotic character of Justinian, and the older jurists, like the Scaevolas, Sulpicius, and Labeo, were distasteful from their sympathy with free inst.i.tutions. Different opinions have been expressed by the jurisconsults as to the merits of the Justinian collection. By some it is regarded as a vast ma.s.s of legal lumber; by others, as a beautiful monument of human labor. After the lapse of so many centuries, it is certain that a large portion of it is of no practical utility, since it is not applicable to modern wants. But again, no one doubts that it has exercised a great and good influence on moral and political science, and introduced many enlightened views concerning the administration of justice, as well as the nature of civil government, and thus has modified the codes of the Teutonic nations, which sprang up on the ruins of the old Roman world. It was used in the Greek empire until the fall of Constantinople. It never entirely lost authority in Italy, although it remained buried till the discovery of the Florentine copy of the Pandects at the siege of Amalfi in 1135.

Peter Valence, in the eleventh century, made use of it in a law-book which he published. With the rise of the Italian cities, the study of Roman law revived, and Bologna became the seat from which it spread over Europe. In the sixteenth century, the science of theoretical law pa.s.sed from Italy to France, under the auspices of Francis I., when Cujas or Cujacius became the great ornament of the school of Bourges, and the greatest commentator on Roman law until Dumoulin appeared. Grotius, in Holland, excited the same interest in civil law that Dumoulin did in France, followed by eminent professors in Leyden and the German universities. It was reserved for Pothier, in the middle of the eighteenth century, to reduce the Roman law to systematic order--one of the most gigantic tasks which ever taxed the industry of man. The recent discoveries, especially that made by Niebuhr, of the long lost work of Gaius have given a great impulse to the study of Roman law in Germany, and to this impulse no one has contributed so greatly as Savigny of Berlin.

The great importance of the subject demands a more minute notice of the principles of the Roman law, than what the limits of this work should properly allow. I shall therefore endeavor to abridge what has been written by the more eminent authorities, taking as a basis the late work of Lord Mackenzie and the learned and interesting essay of Professor Maine.

[Sidenote: Law of persons.]

The Inst.i.tutes of Justinian commenced with the law of persons, recognizing the distinction of ranks. All persons are capable of enjoying civil rights, but not all in the same degree. Greater privileges are allowed to men than to women, to freemen than to slaves, to fathers than to children.

[Sidenote: Equality of citizens.]

In the eye of the law all Roman citizens were equal, wherever they lived, whether in the capital or the provinces. Citizenship embraced both political and civil rights. The political rights had reference to the right of voting in the comitia, but this was not considered the essence of citizenship, which was the enjoyment of the _connubium_ and _commercium_. By the former the citizen could contract a valid marriage, and acquire the rights resulting from it, particularly the paternal power; by the latter he could acquire and dispose of property.

Citizenship was acquired by birth and by manumission; it was lost when a Roman became a prisoner of war, or had been exiled for crime, or became a citizen of another state. An unsullied reputation was necessary for a citizen to exercise his rights to their full extent.

[Sidenote: Slaves.]

The Roman jurists acknowledged all persons originally free by natural law; and, while they recognized slavery, ascribed the power of masters entirely to the law and custom of nations. Persons taken in war were considered at the absolute control of their captors, and were therefore, _de facto_, slaves; and the children of a female slave followed the condition of their mother, and belonged to her master. But masters could manumit their slaves, who thus became Roman citizens, with some restrictions. Until the time of Justinian, they were not allowed to wear the gold ring, the distinguishing symbol of a man born free. This emperor removed all restrictions between freedmen and citizens.

Previously, after the emanc.i.p.ation of a slave, he was bound to render certain services to his former master as patron, and if the freedman died intestate his property reverted to his patron.

[Sidenote: Marriage.]

Marriage was contracted by the simple consent of the parties, though in early times, equality of condition was required. The _lex Canuleia_, A. U. C. 309, authorized connubium between patricians and plebeians, and the _lex Julia_, A. U. C. 757, allowed it between freedmen and freeborn. By the _conventio in manum_, a wife pa.s.sed out of her family into that of her husband, who acquired all her property; without it, the woman remained in the power of her father, and retained the free disposition of her property. Poligamy was not permitted; and relationship within certain degrees rendered the parties incapable of contracting marriage, and these rules as to forbidden degrees have been substantially adopted in England. Celibacy was discouraged. The law of Augustus _Julia et Papia Poppaea_ contained some seven regulations against it, which were abolished by Constantine.

Concubinage was allowed, if a man had not a wife, and provided the concubine was not the wife of another man. This heathenish custom was abrogated by Justinian. [Footnote: D. 25. 7. C. 5, 26.] The wife was ent.i.tled to protection and support from her husband, and she retained her property independent of her husband, when the _conventio_ was abandoned, as it was ultimately. The father gave his daughter, on her marriage, a dowry in proportion to his means, the management of which, with its fruits during marriage, belonged to the husband; but he could not alienate real estate without the wife's consent, and on the dissolution of marriage the _dos_ reverted to the wife. Divorce existed in all ages at Rome, and was very common at the commencement of the empire. To check its prevalence, laws were pa.s.sed inflicting severe penalties on those whose bad conduct led to it. Every man, whether married or not, could adopt children, under certain restrictions, and they pa.s.sed entirely under paternal power. But the marriage relation among the Romans did not accord after all with those principles of justice which we see in other parts of their legislative code. The Roman husband, like the father, was a tyrant. The facility of divorce destroyed mutual confidence, and inflamed every trifling dispute, for a word, or a message, or a letter, or the mandate of a freedman, was quite sufficient to secure a separation. It was not until Christianity became the religion of the empire, that divorce could not be easily effected without a just cause.

[Sidenote: Paternal power.]

Nothing is more remarkable in the Roman laws than the extent of paternal power. It was unjust, and bears the image of a barbarous age. Moreover, it seems to have been coeval with the foundation of the city. A father could chastise his children by stripes, by imprisonment, by exile, by sending them to the country with chains on their feet. He was even armed with the power of life and death. "Neither age nor rank, nor the consular office, could exempt the most ill.u.s.trious citizen from the bonds of filial subjection. Without fear, though not without danger of abuse, the Roman legislators had reposed unbounded confidence in the sentiments of paternal love, and the oppression was tempered by the a.s.surance that each generation must succeed in its turn to the awful dignity of parent and master." [Footnote: Gibbon, c. xliv.] By an express law of the Twelve Tables a father could sell his children as slaves. But the abuse of paternal power was checked in the republic by the censors, and afterwards by emperors. Alexander Severus limited the right of the father to simple correction, and Constantine declared the father who should kill his son to be guilty of murder. [Footnote: Ch.

iv. 17.] The rigor of parents in reference to the disposition of the property of children, was also gradually relaxed. Under Augustus, the son could keep absolute possession of what he had acquired in war. Under Constantine, he could retain any property acquired in the civil service, and all property inherited from the mother could also be retained. In later times, a father could not give his son or daughter to another by adoption without their consent. Thus this _patria potestas_ was gradually relaxed as civilization advanced, though it remained a peculiarity of Roman law to the latest times, and severer than is ever seen in the modern world. [Footnote: Maine, _Ancient Law_, p. 143.]

No one but a Roman citizen could exercise this awful paternal power, nor did it cease until the father died, or the daughter had entered into marriage with the _conventio in manum_. Illegitimate children were treated as if they had no father, and the mother was bound to support them until Justinian gave to natural children a right to demand aliment from their father. [Footnote: N. 89, ch. xii.] Fathers were bound to maintain their children when they had no separate means to supply their wants, and children were also bound to maintain their parents in want.

These reciprocal duties, creditable to the Roman law-givers, are recognized in the French Code, but not in the English, which also recognizes the right of a father to bequeath his whole estate to strangers, which the Roman fathers had not power to do. [Footnote: Lord Mackenzie, p. 142.] The age when children attain majority among the Romans, was twenty-five years. Women were condemned to the perpetual tutelage of parents, husbands, or guardians, as it was supposed they never could attain to the age of reason and experience. The relation of guardian and ward was strictly observed by the Romans. They made a distinction between the right to govern a person, and the right to manage his estate, although the tutor could do both. If the pupil was an infant, the tutor could act without the intervention of the pupil; if the pupil was above seven years of age, he was considered to have an imperfect will. The tutor managed the estate of the pupil, but was liable for loss occasioned by bad management. He could sell movable property when expedient, but not real estate, without judicial authority. The tutor named by the father was preferred to all others.

[Sidenote: Real rights.]

The Inst.i.tutes of Justinian pa.s.s from persons to things, or the law relating to real rights; in other words, that which pertains to property. Some things, common to all, like air, light, the ocean, and things sacred, like temples and churches, are not cla.s.sed as property.

Originally, the Romans divided things into _res mancipi_, and _res nec mancipi_. The former comprehended houses, lands, slaves, and beasts of burden, and could only be acquired by certain solemn forms, which, if not observed, the property was not legally transferred.

The latter included all other things, and admitted of being transferred by simple tradition.