« PreviousContinue »
customs. When these submitted to the Roman CHAP. rule, and became incorporated as one people, some part of their usages would necessarily be retained and adopted. This is the case in all nations of a like origin. As an example, the common law of England has arisen from a combination of Saxon, Danish and Norman usages, though it may now be difficult to trace them with anything like precision. Secondly. As early as the Twelve Tables a free testamentary disposition was allowed to the Roman citizen; hence the law of Wills and Codicils.
Thirdly. The commercial energies of the Romans were soon developed; hence the early establishment and maturity of the law of Contracts.
Fourthly. Whenever a territory was conquered they took one third for the purposes of colonizing, and gave back the rest; this established the laws of Mensuration.
Fifthly. The subdivision of property, wherein the purchaser had conveyed to him certain rights without which the property would have been comparatively useless; from this sprung the Roman Servitutes, or easements.
Sixthly. When the two thirds of the conquered lands were returned to the inhabitants, the decuma vectigal, the yearly tax of the tenth, was imposed. The collection of this tax was not undertaken by the Government, but it was let out to the publicani who bid for it. They were farmers of the public revenue. This led to the law of Capital and Partnerships.
Lastly. The Marine laws. These date from the time of the first Punic war, when Rome began to be a maritime power, U.c. 490.
The technical sources of the Roman law will Technical. require the student's careful attention. I shall not do much more than enumerate them here in their chronological order, as they will be more fully explained in the next chapter.
First, we have the Leges Regiæ, or the Jus Civile Papyrianum, said to have been collected by Sextus Papyrius, Pontifex Maximus. This is supposed to have contained a digest of the laws passed under the kings. They were perhaps partly incorporated into the Twelve Tables; but after the establishment of consular power they probably became nearly obsolete.
Secondly, we come to the laws of the Twelve Tables, which are, in fact, the starting-point of Roman jurisprudence; and as they owe their origin to a revolution in the state, which was gradually emerging from its infancy, and ascending to civilization and power, it is necessary to understand the principal circumstances which led to their establish
In the year 292 U.c. there commenced a political struggle between the patricians and plebeians, the origin of which, like many other similar struggles which the world has since witnessed, was the clashing of class interests. The object of the plebeians, who had now become rich and powerful, was to place themselves as nearly as they could on an equal footing with the patricians; to curb the arbitrary power of the consuls; and to frame a national code for all classes of Romans without distinction'. Though the Jus Papyrianum was reduced to writing, this probably did not apply to the penal law. Where law was oral decisions were left to the discretion of the consuls; the fines imposed by them on the patricians were limited to a small sum, whilst upon the plebeians they were wholly indefinite and discretionary. No bail was allowed to the plebeians, "which may be inferred from the jest of Appius the Decemvir, who called the gaol the plebeians' lodging;" whereas before the time of the Twelve Tables all patricians could keep out of prison by giving bail, and thus were secured from personal punishment, whatever
offences they might commit'. These iniquities, CHAP. together with many of a minor description which swelled the general discontent, induced Terentilius Harsa, the tribune, to bring forward a law for their removal in the year 292 U.C. Then followed ten years of political turmoil, when each party becoming weary of the contest, and each probably conceding something to the other, three deputies were sent to Athens to examine the laws of Solon, and the legal institutions of Greece. Their work was much facilitated by the assistance of one Hermodorus, a learned Ephesian, who had for some time resided in Rome2. The deputies returned from their mission in the year 302 U.0. when it was agreed that ten patricians should be appointed to revise and settle the laws. These were the Decemviri legibus scribendis invested with extraordinary powers: the consuls, the tribunes, and all other magistrates were suspended; the government of the state was committed to them, and from their decision there was no appeal. At the end of the year 302 ten tables were completed; as these, however, did not comprise all that was considered necessary, the Decemvirate was continued for another year, when two additional tables were produced, completing the twelve, which, we may conclude from the title of Lex prefixed to them, received the sanction of the people. We must here guard ourselves from the error of supposing that the Decemviri acted in the character of legislators. As far as we can collect from history, their province did not extend beyond the task of the selection and codification of such existing laws and customs as in their judgment it was most expedient to adopt. The Twelve Tables were finally committed to writing, and set up in some public place for the information of the people; whether in the Ærarium, or in the Forum, and whether written on brass, copper, or ivory, is of no
BOOK importance in our inquiry; and may safely be left I. to the deep research of the German commentators. Here the Roman jurisprudence begins: the complaint of the uncertainty and obscurity of the laws could no longer be urged; they became plain to all who could read, and the Roman school-boys learned them as their tasks. Parts of the Decemviral laws have survived: the reader may consult Bach's History, p. 14, and the second volume of Haubold's Institutes.
It can scarcely be doubted that the plebeians at first intended to accomplish an entire equalization of civil rights and privileges. In this they failed, for the Twelve Tables produced no amalgamation of grades. This appears evident from the fact that it was not till more than eighty years afterwards that the first plebeian consul was elected'.
The Twelve Tables having been settled, it followed that every legal proceeding must thenceforth be governed by them. But the Decemviri had determined nothing with respect to the forms which the suitor must observe. This had to be settled by the Jurisprudentes. They therefore framed the actiones legis which were the forms necessary to be observed, and if not observed the suitor had no locus standi in court; his action was abated, and he had to begin anew. The actiones legis are well explained by Heineccius as "certi exercendi juris ritus, certæ verborum conceptiones et formulæ, quibus neglectis, susceptum quodvis civile negotium irritum habebatur." The patrician Jurisprudentes having established these necessary formulæ, all knowledge of them centered in themselves: they alone knew how and when each action should be brought, for they also kept secret the dies fasti, nefasti and intercisi.
In the year 450 U.c. one Flavius, who was clerk to Appius Claudius Cæcus, a patrician lawyer, copied and published his master's book 2 Hein. Ant. proœm. 6.
1 Haub, II. 34.
of Actiones, i.e. forms and precedents. Though a CHAP. most dishonest act, it was a great boon to the public, as it put an end to the monopoly of the patricians, and from that time plebeian lawyers began to exist. It is called the Jus Flavianum.
The patrician Jurisprudentes immediately re- Jus Æliamodelled the Actiones, so as again to thwart the num. plebeians: these amended forms were published by Sextus Ælius in the year 552 U.C. This is the Jus Ælianum.
It must be carefully noted that these were not additions to the law itself, but the necessary forms used by lawyers in the practice of it.
The real additions made to the law during the media jurisprudentia, that is, from the Twelve Tables to the reign of Augustus, were:
I. The Responsa Prudentum,-the legal opi- Responsa nions given by the Jurisprudentes in answer to tum. cases stated by their clients, collected and arranged according to the subjects of which they treated.
2. The Jus honorarium, which was the law Jus honoarising from the rules of the Prætor's court, after- rarium. wards called the Edictum perpetuum Juliani, which will be explained in the next chapter.
3. The Senatus Consulta,-decrees of the Senatus Senate.
In the year 723 U.c. Augustus became em- Placita peror, and having had absolute power conferred on pum. him by the Lex regia, the Placita Principum, or Constitutiones Imperatorum, began to be exercised by him, and thenceforth were continued by all succeeding emperors. He also conferred the auc- Auctoritas toritas respondendi upon certain of the most dis- Pruden tinguished jurists, decreeing that their responsa should be considered as law, and as such should be recognised by the courts. This however did. not interfere with the Jus respondendi of the jurists in general.
In the year 131 A.D. the Emperor Hadrian ordered Salvius Julianus, who was then Prætor,