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XIV.

laws,

CHAP. Hermodorus of Ephesus, who repdered such impor

tant services in explaining the institutions of his countrymen, above all of the Athenians, the great glory of the Ionian race, that a statue was erected to

his honour in the comitium. They com- The result of these labours, after a few months, plete ten tables of was submitted to the examination of the people ..

Ten tables were published and set up in a conspicuous place for all to read them. Every man was then invited to make known to the ten such corrections as he might think needed; these were considered and adopted as far as the ten approved of them: and the ten tables thus amended were then laid before the senate, the centuries, and the curiæ, and received the sanction of both orders of the nation. The laws were then engraved on tablets of brass 4, and the tablets were set up in the comitium,

that all men might know and observe them. Only frag- It cannot be doubted that the ten tables were a ments of them have complete work, and intended to be so by their been preserved to us. authors. All the circumstances of their enactment

show this; it seems shown also by their number, which had reference to that of the ten commissioners,

him contemporary with Anaxago- the comitium, (Pliny, Hist. Nat. ras, the elder Zenon, and Parme- XXXIV. 11,) would seem to prove nides, which would render it very that the story of his having helped possible for his friend Hermodo- the decemvirs was not without rus to have visited Rome in the foundation. time of the decemvirs. Strabo ex- 3 Livy, III. 34. pressly identifies the Hermodorus 4 So Dionysius, othhaus xalkais of whom Heraclitus spoke, with éyxapácartes aŭtoús. X. 57. the man of that name who helped Livy's simple expression “ tabulæ" the decemvirs in drawing up their would lead one to suppose that laws. And the fact of his having they were written on wood. been honoured with a statue in

XIV.

se

THE ROMAN

as if each commissioner had contributed an equal CHAP. portion to their joint work. It is clear also, that they satisfied the expectations of the people, and were drawn up in a spirit of fairness and wisdom: for whatever the Romans found fault with in the laws of the twelve tables, was contained in the two last of them; and the laws, as a whole, are spoken of with high admiration, and remained for centuries as the foundation of all the Roman law. Unhappily we ourselves know little of them beyond this general character. Some fragments of them have been preserved by ancient writers; but these are far too scanty to allow us to judge either of the substance or of the order of the whole code.

Still o we may fitly avail ourselves of the occasion State of offered by this great period in Roman legislation, to LAW IN ITS

EARLIEST
KNOWN

FORM. 5 The authentic remains of the on all, the necessity of the case 'twelve tables are given by Hau- must excuse the presumption. hold in his “Institutionuin Juris It will be proper here to mention Romani privati Lineamenta," as the works from which the prerepublished after his death by sent chapter has been chiefly Dr. Otto, Leipzig, 1826. They compiled. 1st. The Institutes of are given also by Dirksen, with an Gaius. An epitome of the three elaborate criticism as to the text first books of this great work had and the sources of each fragment. been long known, but the whole “Uebersicht der bisherigen Ver. work in its genuine state was suche zur Kritik und Herstellung first discovered by Niebuhr in des Textes der Zwölf-Tafel-Frag- 1816, in a palimpsest, or rewritten mente.” Leipzig, 1824. The earlier manuscript, of some of the works collections of them contain clauses of S. Jerome, in the Chapter ascribed to the twelve tables on in- Library at Verona. I have used sufficient authority.

the second edition, published by 6 I am well aware of the diffi. Göschen at Berlin in 1824; and I culty of writing on legal details have derived great assistance from without a professional knowledge Göschen's continued references to of the subject. But history must parallel passages in the other exembrace the subject matter of tant works of the Roman lawyers. every profession; and as no man 2nd. The fragment of Ulpian from can be properly qualified to write a MS. in the Vatican, published

VOL. I.

XIV.

CHAP. give something of a view of the Roman law as it was

settled by the twelve tables, or as it existed in the oldest form in which it is now possible to trace it. And I shall adopt that division of constitutional law on the one hand, and civil law on the other, which Livy had in his mind when he called the twelve tables “fons omnis publici, privatique juris.”

To begin then with “ Jus privatum,” or the civil

Jus PRIVATUM divided into the

by Hugo in his “ Jus Civile discovered and published by Antejustinianeum.” Berlin, 1815. Mai” are not correctly described, The Fragments of Ulpian more as I had not seen the book when recently discovered and published this note was written. I have by Mai I have not seen. 3rd. I only been able to procure it since have read the Institutes of Justi- the completion of the present tinian, and referred continually to volume, and I find that it contains the Digest or Pandects; but I the remains of several treatises by cannot pretend to have read an unknown lawyer, on various through the Digest, or to be legal subjects; these treatises condeeply acquainted with its con- sisting for the most part of quotatents. 4th. Hugo's Geschichte tions from the works of the most des Römischen Rechts. 9th edit. eminent lawyers, arranged in order, Berlin, 1824. 5th. Haubold's Insti- as in the Pandects. Amongst the tutionum juris Romani lineamen- rest there are naturally citations ta, and Dirksen's work on the from Ulpian, and some of these Twelve Tables, noticed in a pre were not known to us before Mai's ceding note; as also Haubold's discovery; others had been already edition of the well known work preserved in the Pandects. The of Heineccius, “ Antiquitt. Roma- manuscript in which these trea. nar. jurisprudentiam illustran- tises were found was a palimpsest, tium syntagma.” 6th. Savigny, now in the Vatican Library, “ Recht des Besitzes,” 5th edi. and marked in the catalogue tion; and some articles by the VMDCCCLXVI. It was brought same great writer in the « Zeit- to Rome from the library of the schrift für geschichtliche Rechts- monastery at Bobbio, near Placenwissenschaft.” In point of ex- tia, and these treatises were first cellence, I could not, I suppose, published from it by Mai in 1823 : have consulted higher authorities they have been since reprinted at than these; but I am perfectly Bonn, in 1833, under the superconscious of the insufficiency of a intendence of Bethmann Hollweg; few months' study, even of the and I know them only in this best writers, on a subject so vast German edition. They do not as the Roman law. The other give us any additional information works which I have consulted will as to the laws of the Twelve be noticed in their several places. Tables.

“ The Fragments of Ulpian

XIV.

Law of

II. Law of

Actions.

Persons.

and slaves.

law of Rome. This, according to the Roman lawyers, CHAP. related either to persons, or to things, or to actions, in the legal sense of the term. Let us first examine Persons, some of the principal points in the law as it regarded Things, and,

III. Law of persons.

I. In later times the lawyers had occasion to notice I. Law of three descriptions of persons; those born free, those Persons born

free, persons who had been made free, and slaves. The distinc- made free, tions of burghers and commons, patricians and plebeians, had long since vanished; and all free-born Roman citizens were legally regarded as equal. On the other hand, the condition of slaves admits of little variation so long as they remain slaves; and thus, with regard to these, the lapse of centuries produced little change. But the freedmen of a later age appear to represent the clients of the period of the twelve tables.

That the relation of the freedman to his former The freedmaster very nearly resembled that of the client to later age his lord, might be conjectured from this, that when a the clients

of the period slave obtained his freedom, his former master, “ do- of the twelvo minus,” became his “patronus,” the very same name which expressed his relation to his clients. Previously to the decemvirate, this class of persons voted indeed in the comitia of centuries, which comprehended the whole Roman people, but they did not belong to any tribe, and therefore had no votes in the separate comitia of the commons. The decemvirs ?

men of a

resembled

tables.

7 On this point see Niebuhr, his Tabulæ Chronologicæ as one Vol. II. p. 318. Eng. Transl. It of the institutions of the decemis admitted also by Haubold in virs.

XIV.

n

CHAP. procured their enrolment in the tribes, and thus

added greatly to the influence of the aristocracy
over the popular assemblies; for the tie between a
patron and his clients or freedmen seems to have
been a very kindly one, and much stronger as yet
than any sense of the duty of advancing the cause of
the great mass of the nation. Indeed the freedman
was held to belong so much to his patron, that if he .
died intestate, and without direct heirs °, his patron
inherited all his property; a law which applied also,
as we cannot doubt, though perhaps with some quali-

fication, to the client. Power of a Looking at the domestic relations of free citizens, father over his children. we find that the absolute power of a father over his

children, was in some slight degree qualified by the twelve tables; inasmuch as they enacted , that if a father had sold his son three times, he should have no further control over him. Formerly, it appears, the independence of a son during his father's lifetime, had been regarded as monstrous and impos

8 Gaius, Institut. III. $ 40. A opinion. Hist. Rom. Vol. I. p. man's direct heirs, “sui here- 320. Eng. Transl. The qualificades," were according to the tion alluded to is supposed by Reiz Roman law his children “ in to have consisted in this, that a potestate," whether male or fe- client's agnati would have inmale, by birth or by adoption: herited before his patron, whereas his son's children; his son's son's a freedman could have no agnati, children ; his wife in manu ; and his natural relationships in his his daughter in law. See Gaius, state of slavery being reckoned as Institut. III. $ 2. For the appli- nothing. cation of this law to clients, see 9 Si pater filium ter venum Nieuport, Ritt. Romanor. Sect. I. duit, filius a patre liber esto. ch. IV. § 3, and the defence of Fragm. duodec. Tabb. 12, apud his statement in Reiz's preface to Haubold, Institut. jur. Rom. the 5th edit. of Nieuport's work. lineamenta. Niebuhr also is of the same

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