Anno Urbis - The Roman Empire Online

ROMAN JURISPRUDENCE.

If the Romans showed great practical sagacity in distributing political power among different classes and persons, their laws evince still greater wisdom. Jurisprudence is generally considered to be their indigenous science. It is for this they were most distinguished, and by this they have given the greatest impulse to civilization. Their laws were most admirably adapted for the government of mankind, but they had a still higher merit; they were framed, to a considerable degree, upon the principles of equity or natural justice, and hence are adapted for all ages and nations, and have indeed been reproduced by modern lawgivers, and so extensively, as to have formed the basis of many modern codes. Hence it is by their laws that the Romans have had the greatest influence on modern times, and these constitute a wonderful monument of human genius. If the Romans had bequeathed nothing but laws to posterity, they would not have lived in vain. These have more powerfully affected the interests of civilization than the arts of Greece. They are as permanent in their effects as any thing can be in this world--more so than palaces and marbles. The latter crumble away, but the legacy of Gaius, of Ulpian, of Paulus, of Tribonian, will be prized to the remotest ages, not only as a wonderful work of genius, but for its practical utility. The enduring influence of Moses is chiefly seen in his legislation, for this has entered into the Christian codes, and is also founded on the principles of justice. It is for this chiefly that he ranks with the greatest intellects of earth, whether he was divinely instructed or not.

[Sidenote: Object for which laws are made.]

Roman laws were first made in reference to the political exigencies and changes of the state, and afterwards to the relations of the state with individuals, or of individuals with individuals. The former pertain more properly to constitutional history; the latter belong to what is called the science of jurisprudence, and only fall in with the scope of this chapter. The laws enacted by the Roman people in their centuries, or by the Senate, pertaining to political rights and privileges--those by which power passed from the hands of patricians to plebeians, or from the populus to great executive officers--are highly important and interesting in an historical or political sense. But the genius of the Romans was most strikingly seen in the government of mankind; and it therefore the relations between the governing and the governed, the laws created for the general good, pertaining to property and crime and individual rights, which, in this chapter, it is my chief object to show.

[Sidenote: Greeks inferior to the Romans in jurisprudence.]

The Greeks, with all their genius, their great creation in literature, philosophy, and art, did very little for civilization, which we can trace, in the science of jurisprudence. They were too speculative for such a practical science. Nevertheless their speculative wisdom was made use of by Roman jurists. It was only so far as philosophy modified laws, that the influence of Greece was of much account.

[Sidenote: Jurisprudence culminates with emperors.]

Nor did Roman jurisprudence culminate in its serene majesty till the time of the emperors. It was not perfectly developed, until Justinian consolidated it in the Code, the Pandects, and the Institutes. The classical jurists may have laid the foundation; the superstructure was raised under the auspices of those whom we regard as despots.

[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.

[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 illustrious 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 assurance 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.

4. 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 Institutes of Justinian pass 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 classed 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.

[Sidenote: Occupancy.]

Occupancy, one of the original modes of acquiring property, was applied to goods and persons taken in war; to things lost by negligence, or chance, or thrown away by necessity; to pearls, shells, and precious stones found on the sea-shore; to wild animals, to fish, to hidden treasure.

Acquisition, by accession, pertained to the natural and industrial fruits of the land, the rents of houses, interest on money, the increase of animals, lands gained from the sea, and movables.

[Sidenote: Transfer of property.]

[Sidenote: Testaments and legacies.]

[Sidenote: Laws of succession.]

[Sidenote: The laws in inheritance.]

Two things were required for the transfer of property, for it is the essence of property that the owner of a thing should have the right to transfer it,--first, the consent of the former owner to transfer the thing upon some just ground; and secondly, the actual delivery of the thing to the person who is to acquire it. Movables were presumed to be the property of the possessors, until positive evidence was produced to the contrary. A prescriptive title to movables was acquired by possession for one year, and to immovables by possession for two years. Undisturbed possession for thirty years constituted in general a valid title. When a Roman died, his heirs succeeded to all his property, by hereditary right. If he left no will, his estate devolved upon his relations in a certain order prescribed by law. The power of making a testament only belonged to citizens above puberty. Children under the paternal power could not make a will. Males above fourteen, and females above twelve, when not under power, could make wills without the authority of their guardian; but pupils, lunatics, prisoners of war, criminals, and various other persons, were incapable of making a testament. The testator could divide his property among his heirs in such proportions as he saw fit; but if there was no distribution, all the heirs participated equally. A man could disinherit either of his children by declaring his intentions in his will, but only for grave reasons, such as grievously injuring his person or character or feelings, or attempting his life. No will was effectual unless one or more persons were appointed heirs to represent the deceased. Wills were required to be signed by the testator, or some person for him, in the presence of seven witnesses who were Roman citizens. If a will was made by a parent for distributing his property solely among his children, no witnesses were required, and the ordinary formalities were dispensed with among soldiers in actual service, and during the prevalence of pestilence. The testament was opened in the presence of the witnesses, or a majority of them; and after they had acknowledged their seals, a copy was made, and the original was deposited in the public archives. According to the Twelve Tables, the powers of a testator in disposing of his property were unlimited, but in process of time laws were enacted to restrain immoderate or unnatural bequests. By the Falcidian law, in the time of Augustus, no one could leave in legacies more than three fourths of his estate, so that the heirs could inherit at least one fourth. Again a law was passed, by which the descendants were entitled to one third of the succession, and to one half if there were more than four. In France if a man die leaving one lawful child, he can only dispose of half of his estate by will; if he leaves two children, the third; if he leaves three or more, the fourth. [Footnote: Code Civil, Art. 913.] In England a man can cut off both his wife and children. [Footnote: Williams, Exec., p. 3.] The Romans recognized bequests in trust, besides testaments, by which property descended directly to the heir. The person charged with a trust was bound to restore the subject at the time appointed by the testator. The trustee could not alienate an estate without the consent of all the parties interested, except for the payment of debts. All persons capable of making a will could leave legacies, real or personal, but these were not due if the testator died insolvent. When a man died intestate, the succession devolved on the descendants of the deceased; but, these failing, the nearest ascendants were called; if there were brothers and sisters, they were entitled to succeed together along with the ascendants in the same class. Children succeeded to property, if their father died intestate, in equal portions, without distinction of sex, and if there was only one child he took the whole estate. A descendant of either sex, or any degree, was preferred to all ascendants and collaterals. The descendants of a son or daughter, who had predeceased, took the same share of the succession that their parent would have done had he been alive. In England, if all the children are dead, and only grandchildren exist, they all take, not by families, but per capita, equal shares in their own right as next of kin, and Mackenzie thinks this arrangement is more equitable than the Roman. [Footnote: Mackenzie, p. 288] If there were no descendants, the Roman father and mother, and other ascendants, excluded all collaterals from the succession except brothers and sisters of the whole blood, and the children of deceased brothers and sisters. When ascendants stood alone, the father and mother succeeded in equal portions, and if only one survived, he or she succeeded to the whole, so that grandparents were excluded. If there were brothers and sisters of the whole blood, the estate was divided among them in capita, according to the number of persons, including the father and mother. The children of a deceased brother were not admitted to the succession along with ascendants and surviving brothers and sisters. [Footnote: Ibid. 290] If a person died leaving neither ascendants nor descendants, his brothers and sisters succeeded to his estate in equal shares. And if the intestate left also nephews and nieces by a deceased brother or sister, these succeeded, along with their uncles and aunts, to the share their parent would have taken. On the failure of brothers and sisters by the whole blood, the brother and sisters by the half blood succeeded, and if any of these brothers and sisters have died leaving children, the right of representation was extended to them also, just as in the case of children of brothers-german. When husband or wife died, without leaving relations, the survivor was called to the succession. A widow who was poor and unprovided for had a right to share in the succession of her deceased husband. When he left more than three descendants, she was entitled to participate with them equally. If there were only three or fewer, she was entitled to one fourth of the estate. If she had children by the deceased, she had only the usufruct of her portion during her life, and was bound to preserve it for them. If a man had no legitimate children, he could leave his whole inheritance to his natural children, or to their mother; but if he had lawful children, he could leave only one twelfth to the natural children and their mother. If the father died intestate, without leaving a lawful wife or issue, his natural children and their mother were entitled to one sixth of the succession, and the rest was divided among the lawful heirs.

[Sidenote: Contracts.]

In the matter of contracts, the Roman law was especially comprehensive, and the laws of France and Scotland are substantially based upon the Roman system. The Institutes of Gaius and Justinian distinguish four sorts of obligation,--aut re, aut verbis, aut literis, aut consenser. Gibbon, in his learned chapter, prefers to consider the specific obligations of men to each other under promises, benefits, and injuries. Lord Mackenzie treats the subject in the order of the Institutes.

"Obligations contracted re--by the intervention of things--are called by the moderns real contracts, because they are not perfected till something has passed from one party to another. Of this description are the contracts of loan, deposit, and pledge. Till the subject is actually lent, deposited, or pledged, it does not form the special contract of loan, deposit, or pledge." [Footnote: Mackenzie.]

[Sidenote: Loans.]

In regard to loans, the borrower was obliged to take care of it as if it were his own. In rebus commodatis tails diligentia proestanda est, qualem quisque diligentissimus paterfamilias suis rebus adhibet. [Footnote: D. 13, 6, 1 pr.] He could only use a thing for the purpose for which it was lent; he could not keep it beyond the time agreed upon, nor detain it as a set-off against any debt. He was bound to restore the article in the same condition as received, subject only to the deterioration arising from reasonable use, whether a horse, a house, or a carriage. And he was required to make good all injuries caused by his own fault or negligence. If the article perished, without any blame or neglect, the loss fell on the owner. If the loan was for consumption, which was called mutuum, like corn, or oil, or wine, the borrower was required to return as much of the same kind and quality, whether the price of the commodity had risen or fallen. In a loan of money, under mutuum, the borrower was not required to pay interest. Interest was only due ex lege, or by agreement. The rate varied at different times; generally, it was eight and one third per cent., and even more than this in the latter years of the republic. Justinian introduced a scale which varied with different classes of society. Persons of illustrious rank could lend money at four per cent., ordinary people at six, and for maritime risks twelve; but it was unlawful to charge interest upon interest. [Footnote: C. 4, 32, 26, Section 1.] Property would double, at eight and one third, in twelve years, not so rapidly as by our system of compound interest, especially at the rate of seven per cent. In England the usury laws of different monarchs limited interest from ten per cent, to five; but these were repealed in 1854. Only five per cent. can now be recovered upon any contract.

[Sidenote: Deposits.]

A deposit differed from a loan in this,--that the depositary was not entitled to any use of a thing deposited, and was bound to preserve it with reasonable care, and restore it on demand. As he derived no advantage, he was entitled to be reimbursed for all necessary charges. Ship-masters, innkeepers, and stablers, were responsible for the luggage and effects of travellers intrusted to their care, which policy is now adopted in both Europe and America, on the ground that if they were not held strictly to their charge, being not a very reputable class of men in ancient times, they might be in league with thieves. An innkeeper was therefore held responsible for loss, or damage, or theft, to secure the protection of travellers, whose patronage was a compensation. In case of robbery, when goods were taken by superior force, he was not responsible, nor was he for loss occasioned by inevitable accident.

[Sidenote: Pledges and securities.]

At Rome, pledges were customary, as a security for money due, on condition of their restoration after the payment of a debt. Real property, like houses and lands, as well as movables, were the subject of pledge. [Footnote: D. 20, 1.] The creditor was bound to bestow ordinary care and diligence in the preservation of the subject, but he could not use it, or take the profits of it, without a special contract. By the pactum antichresis, the creditor was allowed to take the profits in lieu of the interest on his debt; by the lex commissoria, the thing pledged became the absolute property of the creditor if the debt was not paid at the time agreed on. But as this condition was found to be a source of oppression, it was prohibited by a law of Constantine. [Footnote: C, 7, 35.] When the debt, interest, and all necessary expenses were paid, the debtor was entitled to have his pledge restored to him. After the time of payment was passed, the creditor had a right to sell the pledge, and retain his debt out of the produce of the sale; if there was a deficiency, the balance could be recovered by an action; if there was a surplus, the debtor was entitled to it. The Roman pledge was of the nature of the modern business of pawnbroking and of a mortgage.

[Sidenote: Verbal Contracts.]

Next to the perfection of contracts by the intervention of things re, were obligations contracted by verbis--solemn words-- and by literis or writing. The verborum obligatio was contracted by uttering certain formal words of style, an interrogation being put by one party and an answer given by the other. These stipulations were binding. In England all guarantees must be in writing.

[Sidenote: Written obligations.]

The obligatio literis was a written acknowledgment of debt chiefly employed when money was borrowed, but the creditor could not sue upon the note within two years from its date, without being called upon also to prove that the money was in fact paid to the debtor.

[Sidenote: Sales.]

Contracts perfected by consent--consenses--had reference to sale, hiring, partnership, and mandate. All contracts of sale were good without writing. When an article was sold and delivered, the market price, as fixed by custom, determined the price, if nothing had been said about it. The seller was bound to warrant that the thing sold was free from defects, and when the subject did not answer this implied warranty, the sale might be set aside. But the seller could stipulate that he should not be held to warrant against defects. Property was not transferred without actual delivery. When the sale was completed, all the risks of the thing sold passed to the purchaser. In the case of commodities sold by weight, number, or measure, the contract was not completed until the goods were weighed, counted, or measured, which sometimes caused considerable difficulty. After delivery, the seller was bound to warrant the title to the buyer, and to indemnify him for any loss. [Footnote: D. 22, 2. C. 8, 45.]

[Sidenote: Leases.]

[Sidenote: Agents and Partners.]

In regard to hiring, all sorts of things, which were the subject of commerce, may be let for hire. Leases of land and houses come under this head. They were generally given for five years, and unless there was an express stipulation, the lessee might sublet to another. The lessor was required to deliver the subject in a good state of repair, and maintain it in that condition, and to guarantee its peaceable enjoyment; the lessee was bound to use the subject well, to put it to no use except that for which it was let, to preserve it in good condition, and restore it at the end of the term. He was bound also to pay the rent at the stipulated period, and when two years' rent were in arrear, the tenant could be ejected. The tenant of a farm was entitled to a remission of his rent if his crop was destroyed by an unforeseen accident or calamity. A contractor who agreed to undertake a piece of work was required to finish it in a proper manner, and if from negligence or ignorance the work was defective, he was liable to damages. In a partnership, if there were no express agreement, the shares of profit and loss were divided equally. Each partner was bound to exercise the same care for the joint concern as if it were his own. The acts of one partner were not binding on another, if he acted beyond the scope of the partnership. If one of the partners advanced money on account of the partnership, each of the partners were bound to contribute to the indemnity in proportion to his share of the concern; and if any of them became insolvent, the solvent shareholders were obliged to make up the deficiency. [Footnote: D. 17, 2, 67.] An agent could be employed to transact business for another, but was required to act strictly according to his orders, and the mandant, who gave the orders, was bound to ratify what was done by the mandatary, and to reimburse him for all advances and expenses incurred in executing the commission. By the Roman law agents were not remunerated. Donations could not be made beyond a certain maximum. Justinian ordered that when gifts exceeded five hundred solidi, a formal act stating the particulars of the donation should be inscribed in a public register.

When a person spontaneously assumed the management of the affairs of another in his absence, and without any mandate, this was called negotiorum gestio, and the person was bound to perform any act which he had begun, as if he held a proper mandate, and strictly account for his management, while the principal was bound to indemnify him for all advances and expenses.

When money was paid through error it could be recovered, under certain circumstances. But this point is a matter concerning which the jurists differ.

[Sidenote: Libels.]

[Sidenote: Damages.]

Acts which caused damage to another obliged the wrongdoer to make reparation, and this responsibility extended to damages arising not only from positive acts, but from negligence or imprudence. In an action of libel or slander, the truth of the allegation might be pleaded in justification. [Footnote: D. 47, 10, 18.] In all cases it was necessary to show that an injury had been committed maliciously. But if damage arose in the exercise of a right, as killing a slave in self-defense, no claim for reparation could be maintained. If any one exercised a profession or trade for which he was not qualified, he was liable to all the damage his want of skill or knowledge might occasion. When any damage was done by a slave or an animal, the owner of the same was liable for the loss, though the mischief was done without his knowledge and against his will. If any thing was thrown from a window of a house near the public thoroughfare, so as to injure any one by the fall, the occupier was bound to repair the damage, though done by a stranger. Claims arising under obligations might be transferred to a third person, by sale, exchange, or donation; but to prevent speculators from purchasing debts at low prices, it was ordered that the assignee should not be entitled to exact from the debtor more than he himself had paid to acquire the debt with interest,--a wise and just regulation which it would be well for us to copy. In regard to the extinction of obligations the creditor is not bound to accept of payments by instalments, or any thing short of proper payment at the time and place agreed upon. When several debts were due, the debtor, in making payment, could appropriate it to any one he pleased. [Footnote: D. 46, 3, 1.] When performance became impossible, without any fault of the debtor, such as when the specific subject had perished by unavoidable accident, the obligation was extinguished; but if the impossibility was caused by the fault of the debtor, he was still liable. This was a great modification of the severity of the ancient code, when a debtor could be sold into slavery for his debt. As certain contracts are formed by consent alone, so they could be extinguished by the mutual consent of the contracting parties, without performance on either side. In some cases the mere lapse of time extinguished an obligation, as in accordance with the modern system of outlawry.

[Sidenote: Law of actions.]

The next great department of Roman jurisprudence pertained to actions and procedure. The state conferred on a magistrate or judge jurisdiction to determine questions according to law. Civil jurisdiction pertains to questions of private right; criminal jurisdiction takes cognizance of crimes. When jurisdiction was conferred on a Roman magistrate, he acquired all the powers necessary to exercise it. The imperium merum gave the power to inflict punishment; the _imperium mixtum was the power to carry civil decrees into execution. A real action was directed against a person in the territory where the subject in dispute was located.

By the ancient constitution, the king had the prerogative of determining civil causes. The right then devolved on the consuls, afterwards on the praetor, and in certain cases on the curule and plebeian ediles, who were charged with the internal police of the city.

[Sidenote: The Praetors.]

The praetor, a magistrate next in dignity to the consuls, acted as supreme judge of the civil courts, assisted by a council of jurisconsults to determine questions in law. At first one praetor was sufficient, but as the limits of the city and empire extended, he was joined by a colleague. After the conquest of Sicily, Sardinia, and the two Spains, new praetors were appointed to administer justice in the provinces. The praetor held his court in the comitium, wore a robe bordered with purple, sat in a curule chair, and was attended by lictors.

[Sidenote: Other judges.]

The praetor delegated his power to judges, called Judex, Arbiter, and Recuperatores. When parties were at issue about facts, it was the custom for the praetor to fix the question of law upon which the action turned, and then to remit to a delegate to inquire into the facts and pronounce judgment according to them. In the time of Augustus there were four thousand judices, who were merely private citizens, generally senators or men of consideration. The judex was invested by the magistrate with a judicial commission for a single case only. After being sworn to duty, he received from the praetor a formula containing a summary of all the points under litigation, from which he was not allowed to depart. He was required not merely to investigate facts, but to give sentence. And as law questions were more or less mixed up with the case, he was allowed to consult one or more jurisconsults. If the case was beyond his power to decide, he could decline to give judgment. The arbiter, like the judex, received a formula from the praetor, and seemed to have more extensive power. The recuperatores heard and determined cases, but the number appointed for each case was usually three or five.

[Sidenote: The centumvirs.]

The centumvirs constituted a permanent tribunal composed of members annually elected, in equal numbers, from each tribe, and this tribunal was presided over by the praetor, and divided into four chambers, which, under the republic, was placed under the ancient quaestors. The centumvirs decided questions of property, embracing a wide range of subjects. [Footnote: Cicero de Orat., i. 38.] The Romans had no class of men like the judges of modern times. The superior magistrates were changed annually, and political duties were mixed with judicial. The evil was partially remedied by the institution of legal assessors, selected from the most learned jurisconsults. Under the empire, the praetors were greatly increased. Under Tiberius, there were sixteen who administered justice, beside the consuls, six ediles, and ten tribunes of the people. The emperor himself became the supreme judge, and he was assisted in the discharge of his judicial duties by a council composed of the consuls, a magistrate of each grade, and fifteen senators. The Praetorian prefects, although, at first, their duties were purely military, finally discharged important judicial functions. The prefect of the city, in the time of the emperors, was a great judicial personage, who heard appeals from the praetors themselves.

[Sidenote: Witnesses.]

In all cases brought before the courts, the burden of proof was with the party asserting an affirmative fact. Proof by writing was generally considered most certain, but proof by witnesses was also admitted. Pupils, lunatics, infamous persons, interested parties, near relations, and slaves, could not bear evidence, or any person who had a strong enmity against the party. The witnesses were required to give their testimony on oath. Two witnesses were enough to prove a fact, in most instances. When witnesses gave conflicting testimony, the judge regarded those who were worthy of credit rather than numbers. In the English courts, the custom used to be as with the Romans, of refusing testimony from those who were interested, but this has been removed. On the failure of regular proof, the Roman law allowed a party to refer the facts in a civil action to the oath of his adversary.

[Sidenote: Condition of debtors.]

Under the empire every judgment was reduced to writing and signed by the judge, and then entered upon a register. [Footnote: C. vii. 45, 12.] After the sentence, the debtor was allowed thirty days for the payment of his debt, after which he was assigned over to the creditor and kept in chains for sixty days, during which he was publicly exposed for three market days, and if no one released him by paying the debt, he could be sold as a slave. Justinian extended the period to four months for the payment of a judgment debt, after which, if the debt was not paid, the debtor could be imprisoned, but not, as formerly, in the creditor's house. At first the goods of the debtor were sold in favor of any one who offered to pay the largest dividend, but in process of time, the goods of the debtor were sold in detail, and all creditors were paid a ratable dividend. In no respect are modern codes superior to the Roman, so much as in reference to imprisonment for debt. In the United States it has practically ceased, and in England no one can be imprisoned for a debt under 20 pounds, and in France under 8 pounds.

[Sidenote: Appeal.]

Under the Roman republic, there was no appeal in civil suits, but under the emperors a regular system was established. Under Augustus, there was an appeal from all the magistrates to the prefect of the city, and from him to the Praetorian prefect or emperor. In the provinces there was an appeal from the municipal magistrates to the governors, and from them to the emperor. Under Justinian, no appeal was allowed from a suit which did not involve at least twenty pounds in gold.

[Sidenote: Criminal courts.]

In regard to criminal courts, among the Romans, during the republic, the only body which had absolute power of life and death was the comitia centuriata. The Senate had no jurisdiction in criminal cases, so far as Roman citizens were concerned. It was only in extraordinary emergencies that the Senate, with the consuls, assumed the responsibility of inflicting summary punishment. Under the emperors, the Senate was armed with the power of criminal jurisdiction. And as the Senate was the tool of the imperator, he could crush whomsoever he pleased.

As it was inconvenient, when Rome had become a very great city, to convene the comitia for the trial of offenders, the expedient was adopted of delegating the jurisdiction of the people to persons invested with temporary authority, called quaesitores. These were established at length into regular and permanent courts, called quaestiones perpetuae. Every case submitted to these courts was tried by a judge and jury. It was the duty of the judge to preside and regulate proceedings according to law; and it was the duty of the jury, after hearing the evidence and pleadings, to decide upon the guilt or innocence of the accused. As many as fifty persons frequently composed the jury, whose names were drawn out of an urn. Each party had a right to challenge a certain number, and the verdict was decided by a majority of votes. At first the judices were chosen from the Senate, and afterwards from the Equestrians, and then again from both orders. But in process of time the quaestiones perpetuae gave place to imperial magistrates. The accused defended himself in person or by counsel.

[Sidenote: Crimes.]

The Romans divided crimes into public and private. Private crimes could only be prosecuted by the party injured, and were generally punished by pecuniary fines, as among the old Germanic nations.

[Sidenote: Treason.]

Of public crimes, the crimen loesoe majestatis, or treason, was regarded as the greatest, and this was punished with death, and with confiscation of goods, [Footnote: I. 4, 18, 3.] while the memory of the offender was declared infamous. Greater severity could scarcely be visited on a culprit. Treason comprehended conspiracy against the government, assisting the enemies of Rome, and misconduct in the command of armies. Thus Manlius, in spite of his magnificent services, was hurled from the Tarpeian Rock, because he was convicted of an intention to seize upon the government. Under the empire, not only any attempt on the life of the emperor was treason, but disrespectful words or acts. The criminal was even tried after death, [Footnote: C. 9, 8, 6.] that his memory might become infamous, and this barbarous practice existed even in France and Scotland, as late as the beginning of the seventeenth century. In England, men have been executed for treasonable words. Beside treason there were other crimes against the state, such as a breach of the peace, extortion on the part of provincial governors, embezzlement of public property, stealing sacred things, bribery, most of which offenses were punished by pecuniary penalties.

[Sidenote: Capital punishments.]

[Sidenote: Criminal law gradually ameliorated.]

But there were also crimes against individuals which were punished with the death penalty. Willful murder, poisoning, parricide, were capitally punished. Adultery was punished by banishment, beside a forfeiture of considerable property. [Footnote: D, 48, 5.] Constantine made it a capital offense. The Romans made adultery to consist in sexual intercourse with another man's wife, but not with a woman who was not married, even if he were married. Rape was punished with death [Footnote: C. 9, 13.] and confiscation of goods, as in England till a late period, when transportation for life became the penalty. The punishments inflicted for forgery, coining base money, and perjury, were arbitrary. Robbery, theft, patrimonial damage, and injury to person and property, were private trespasses, and not punished by the state. After a lapse of twenty years, without accusation, crimes were supposed to be extinguished. The Cornelian, Pompeian, and Julian laws formed the foundation of criminal jurisprudence, which never attained the perfection that was seen in the Civil Code. It was in this that the full maturity of wisdom was seen. The emperors greatly increased the severity of punishments, as probably necessary in a corrupt state of society. After the decemviral laws fell into disuse, the Romans, in the days of the republic, passed from extreme rigor to great lenity, as is observable in the transition from the Puritan regime to our times in the United States. Capital punishment for several centuries was exceedingly rare, and this was prevented by voluntary exile. Under the empire, public executions were frequent and revolting.

[Sidenote: Fines.]

[Sidenote: Exile.]

Fines were a common mode of punishment with the Romans, as with the early Germans. Imprisonment in a public jail was also rare, the custom of bail being in general use. Although retaliation was authorized by the Twelve Tables for bodily injuries, it was seldom exacted, since pecuniary compensation was taken in lieu. Corporal punishments were inflicted upon slaves, but rarely upon citizens, except for military crimes. But Roman citizens could be sold into slavery for various offenses, chiefly military, and criminals were often condemned to labor in the mines or upon public works. Banishment was common--aquae et ignis interdictio--and this was equivalent to the deprivation of the necessities of life, and incapacitating a person from exercising the rights of citizenship. Under the emperors, persons were confined often on the rocky islands off the coast, or a compulsory residence in a particular place assigned. Thus Chrysostom was sent to a dreary place on the banks of the Euxine. Ovid was banished to Tomi. Death, when inflicted, was by hanging, scourging, and beheading, also by strangling in prison. Slaves were often crucified, and were compelled to carry their cross to the place of execution. This was the most ignominious and lingering of all deaths. It was abolished by Constantine from reverence to the sacred symbol. Under the emperors, execution took place also by burning alive and exposure to wild beasts. It was thus the early Christians were tormented, since their offense was associated with treason. Persons of distinction were treated with more favor than the lower classes, and the punishment was less cruel and ignominious. Thus Seneca, condemned for privity to treason, was allowed to choose his mode of death. The criminal laws of modern European states followed too often the barbarous custom of the emperors until a recent date. Since the French Revolution, the severity of the penal codes has been much modified.

[Sidenote: Excellence of laws pertaining to property.]

[Sidenote: Rights of citizens.]

The penal statutes of Rome, as Gibbon emphatically remarks, "formed a very small portion of the Code and the Pandects; and in all judicial proceedings, the life or death of the citizen was determined with less caution and delay than the most ordinary question of covenant or inheritance." This was owing to the complicated relations of society, by which obligations are created or annulled, while duties to the state are explicit and well known, being inscribed not only on tables of brass, but on the conscience itself. It was natural, with the growth and development of commerce and dominion, that questions would arise which could not be ordinarily settled by ancient customs, and the practice of lawyers and the decisions of judges continually raised new difficulties, to be met only by new edicts. It is a pleasing fact to record that jurisprudence became more just and enlightened as it became more intricate. The principles of equity were more regarded under the emperors than in the time of Cato. It is in the application of these principles that the laws of the Romans have obtained so high consideration. Their abuse consisted in the expense of litigation, and the advantages which the rich thus obtained over the poor. But if delays and forms led to an expensive and vexatious administration of justice, these were more than compensated by the checks which a complicated jurisprudence gave to hasty or partial decisions. It was in the minuteness and precision of the forms of law, and in the foresight with which questions were anticipated in the various transactions of business, that prove that the Romans, in their civil and social relations, were very much on a level with modern times. And it would be difficult to find, in the most enlightened of modern codes, greater wisdom and foresight than what appear in the legacy of Justinian, as to all questions pertaining to the nature, the acquisition, the possession, the use, and the transfer of property. Civil obligations are most admirably defined, and all contracts are determined by the wisest application of the natural principles of justice. What can be more enlightened than the laws which relate to leases, to sales, to partnerships, to damages, to pledges, to hiring of work, and to quasi contracts! How clear the laws pertaining to the succession to property, to the duties of guardians, to the rights of wards, to legacies, to bequests in trust, and to the general limitation of testamentary powers! How wise the regulations in reference to intestate succession, and to the division of property among males and females. We find no laws of entail, no unequal rights, no absurd distinctions between brothers, no peculiar privileges given to males over females, or to older sons. In the Institutes of Justinian, we see on every page a regard to the principles of natural justice. We discover that the property of the wife cannot be alienated nor mortgaged by a prodigal husband; that wards are to be protected from the cupidity of guardians; that property could be bequeathed by will, and that wills are sacred; that all promises are to be fulfilled; that he who is intrusted with the property of another is bound to restitution by the most imperative obligations; that usury should be restrained; that all injuries should be repaired; that cattle and slaves should be protected from malice and negligence; that atrocious cruelties in punishment should not be inflicted; that malicious witnesses should be punished; that corrupt judges should be visited with severe penalties; that libels and satires should subject their authors to severe chastisement; that every culprit should be considered innocent until his guilt was proved. In short, every thing pertaining to property and contracts and wills is guarded with the most zealous care. A man was sure of possessing his own, and of transmitting it to his children. No infringement on personal rights could be tolerated. A citizen was free to go where he pleased, to do whatsoever he would, if he did not trespass on the rights of another; to seek his pleasure unobstructed, and pursue his business without vexatious incumbrances. If he was injured or cheated, he was sure of redress. Nor could he be easily defrauded with the sanction of the laws. A rigorous police guarded his person, his house, and his property. He was supreme and uncontrolled within his family. And this security to property and life and personal rights was guaranteed by the greatest tyrants. The fullest personal liberty was enjoyed under the emperors, and it was under their sanction that jurisprudence, in some of the most important departments of life, reached perfection. If injustice was suffered, it was not on account of the laws, but the depravity of men, the venality of the rich, and the tricks of lawyers. But the laws were wise and equal. The civil jurisprudence could be copied with safety by the most enlightened of European states. And, indeed, it is the foundation of their civil codes, especially in France and Germany.

[Sidenote: Abuse of paternal power.]

That there were some features in the Roman laws which we, in these Christian times, cannot indorse, and which we reprehend, cannot be denied. Under the republic, there was not sufficient limit to paternal power, and the paterfamilias was necessarily a tyrant. It was unjust that the father should control the property of his son, and cruel that he was allowed such absolute control, not only over his children, but his wife. But the limits of paternal power were more and more curtailed, so that under the latter emperors, fathers were not allowed to have more authority than was perhaps expedient.

[Sidenote: Evils of slavery.]

The recognition of slavery as a domestic institution was another blot, and slaves could be treated with the grossest cruelty and injustice without redress. But here the Romans were not sinners beyond all other nations, and our modern times have witnessed a parallel.

It was not the existence of slavery which was the greatest evil, but the facility by which slaves could be made. The laws pertaining to debt were severe, and it was most disgraceful to doom a debtor to the absolute power of a creditor. To subject men of the same blood to slavery for trifling debts, which they could not discharge, was the great defect of the Roman laws. But even these cruel regulations were modified, so that in the corrupt times of the empire, there was no greater practical severity than what was common in England one hundred years ago. The temptations to fraud were enormous in a wicked state of society, and demanded a severe remedy. It is possible that future ages may see too great leniency shown to debtors, who are not merely unfortunate but dishonest, in these our times; and the problem is not yet solved, whether men should be severely handled who are guilty of reckless and unprincipled speculations and unscrupulous dealings, or whether they should be allowed immunity to prosecute their dangerous and disgraceful courses.

[Sidenote: Evils of divorce.]

The facility of divorce was another stigma on the Roman laws, and the degradation of woman was the principal consequence. But woman never was honored in any pagan land. Her condition at Rome was better than it was at Athens. She always was regarded as a possession rather than as a free person. Her virtue was mistrusted, and her aspirations were scorned. She was hampered and guarded more like a slave than the equal companion of man. But the whole progress of legislation was in her favor, and she continued to gain new privileges to the fall of the empire.

[Sidenote: Severity of penal law.]

[Sidenote: Certainty of punishment.]

Moreover, the penal code of the Romans, in reference to breaches of trust, or carelessness, or ignorance, by which property was lost or squandered, may have been too severe, as is the case in England in reference to hunting game on another's grounds. It was hard to doom a man to death who drove away his neighbor's cattle, or entered in the night his neighbor's house. But severe penalties alone will keep men from crimes where there is a low state of virtue and religion, and society becomes impossible when there is no efficient protection to property. If sheep can be killed by dogs, if orchards can be stripped of their fruit, and jewelry be appropriated by servants with impunity, a great stimulus to honest industry is taken away, and men will be forced to seek more distant homes where they can reap the fruits of toil, or will give up in despair. Society was never more secure and happy in England than when vagabonds could be arrested, and when petty larcenies were visited with certain retribution. Every traveler in France and England feels that in regard to the punishment of crime, those old countries, restricted as are political privileges, are vastly superior to our own. The Romans lost, under the emperors, their political rights; but they gained protection and safety in their relations with society. And where quiet and industrious citizens feel safe in their homes, and are protected in their dealings from scoundrels, and have ample scope for industrial enterprise, and are free to choose their private pleasures, they resign themselves to the loss of electing their rulers without great unhappiness. There are greater evils in the world than the deprivation of the elective franchise, great and glorious as is this privilege. The arbitrary rule of the emperors was fatal to political aspirations and rights, but the evils of political slavery were qualified and set off by the excellence of the civil code, and the privileges of social freedom.

[Sidenote: Intricacy and uncertainty of the law.]

The great practical evil connected with Roman jurisprudence was the intricacy and perplexity and uncertainty of the laws, together with the expense involved in litigation. The class of lawyers was large, and their gains were extortionate. Justice was not always to be found on the side of right. The law was uncertain as well as costly. The most learned counsel could only be employed by the rich, and even judges were venal. So that the poor did not easily find adequate redress, and the good became an evil. But all this is the necessary attendant on a factitious state of society. Material civilization will lead to an undue estimate of money. And when money purchases all that artificial people desire, then all classes will prostitute themselves for its possession, and justice, dignity, and elevation of sentiment are forced to retreat, as hermits sought a solitude, when society had reached its lowest degradation, out of pure despair of its renovation.

* * * * *

The authorities for this chapter are very numerous. Since the Institutes of Gaius have been recovered, very many eminent writers on Roman law have appeared, especially in Germany and France. Among those who could be cited, are Beaufort, Histoire de la Republique Romaine; Colquhoun, Summary of the Roman Civil Law; De Fresquet, Traite Elementaire de Droit Romain; Ducaurroy (A. M. Professor of Roman Law at Paris), Les Institutes de Justinien nouvellement expliquees; Gneist (Dr. Reed), Institutionum et Regularum Juris Romani; Halifax (Dr. Samuel), Analysis of the Roman Civil Law; Heineccius (Jo. Gott.), Elementa Juris Civilis Secundum Ordinem Institutionum; Laboulaye, Essai sur les Lois Criminelles des Remains; Long's Articles on Roman Law in Dr. Smith's Dictionary; Maine's Ancient Law; Gaius, Institutionum Commentarii Quatuor; Marezole (Theodore, Professor at Leipsic), Lebruch der Institutionem des Romischen Rechts; Maynz (Charles, Professor of Law at Brussels), Elements du Droit Romain; Ortolan (M., Professor at Paris), Explication Historique des Institutes de l'Empereur Justinien; Phillimore, Introduction to the Study and History of Roman Law; Pothier, Pandectae Justinianae in Novum Ordinem Digestae; Savigny, Geschichte des Rom. Rechts; Walter, Histoire de la Procedure Civile Chez Romains.

I have found the late work of Lord Mackenzie, on Roman Law, together with the articles of George Long, in Smith's Dictionary, the most useful in compiling this notice of Roman jurisprudence. Mr. Maine's Treatise on Roman Law is exceedingly interesting and valuable. Gibbon's famous chapter should also be read by every student. There is a fine translation of the Institutes of Justinian, which is quite accessible, by Dr. Harris of Oxford. The Code, Pandects, Institutes, and Novels, are, of course, the original authority, with the long-lost Institutes of Gaius.

In connection with the study of the Roman law, it would be well to read Sir George Bowyer's Commentaries on the Modern Civil Law; Irving, Introduction to the Study of the Civil Law; Lindley, Introduction to the Study of Jurisprudence; and Wheaton's Elements of International Law; Vattel, Le Droit des Gens.

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