Books: The Old Roman World

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[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 publicum_, [Footnote: Cicero, _De Legibus_.] or that
which refers to the Roman constitution. 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 passed by the
centuries, the _plebiscita_ or laws proposed by the tribunes and
passed by the tribes, and the _senatus consulta_, gradually swelled
the laws to a great number. Three thousand plates of brass, 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 substituting
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
assemblies 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 constitution, 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 passed
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,
surpassed 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 noble 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, Sempronius
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 Institutes 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 surpassed 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
associated 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 titles 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 class 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. Crassus, Pompey, P. Sextus, 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 pass 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 mass of
treatises on every department of the law, most of which have perished.
The Institutes 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 Institutes 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, entitled
"_Tituli 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 constitutions, 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 space 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 constitutions, leaving out
what was obsolete or useless or contradictory, and to make such
alterations as the circumstances required. This was called the
_Code_, divided into twelve books, and comprising the constitutions
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 titles were
now given to the officers of the crown, to prepare, with the assistance
of seventeen associates, 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 title 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 principal writers are
Paulus, Papinian, Salvius Julianus, 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 Institutes.]

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 Institutes 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, Institutes, 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 Institutes, 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 institutions. Different opinions have been
expressed by the jurisconsults as to the merits of the Justinian
collection. By some it is regarded as a vast mass 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 passed
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 Institutes 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 emancipation 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 passed
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
entitled 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 passed 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 passed 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.