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 that 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 the limits of this work properly allow.
I shall therefore endeavor to abridge what has been written by eminent
authorities, taking as a basis the late work of Lord Mackenzie and the
learned and interesting essay of Professor Maine.
The Institutes of Justinian began 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.
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. 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 required by law
for a citizen to exercise his rights to their full extent.
The Roman jurists acknowledged all persons originally free by natural
law; and while they recognized slavery, they 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; 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. 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.
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. Polygamy was not permitted; and relationship within
certain degrees rendered the parties incapable of contracting marriage.
(These rules as to forbidden degrees have been substantially adopted in
England.) Celibacy was discouraged. 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. The wife was
entitled to protection and support from her husband, and she retained
her property independent of him. On her marriage the father gave his
daughter a dowry in proportion to his means, the management of which,
with its usufruct 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 beginning 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. This facility of divorce was a great stigma on the Roman laws,
and the degradation of woman was the principal consequence. But woman
never was honored in any Pagan land, although her condition at Rome was
better than it was at Athens. She always was regarded as a possession
rather than as a 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 progress of legislation, as a whole, was
in her favor, and she continued to gain new privileges until the fall of
the empire. The Roman Catholic Church regards marriage as one of the
sacraments, and through all the Middle Ages and down to our own day the
great authority of the Church has been one of the strongest supports of
that institution, as necessary to Christianity as to civilization. We
Americans have improved on the morality of Jesus, of the early and later
Church, and of the great nations of modern Europe; and in many of our
States persons are allowed to slip out of the marriage tie about as
easily as they get into it.
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,"
says Gibbon, "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." 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
afterward 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. 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
was severer than is ever seen in the modern world. 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 if in
want. These reciprocal duties, creditable to the Roman lawgivers, 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,--a thing which Roman fathers had not power to do. The age
when children attained 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
or guardian 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 youth
ceased to be a pupil, if a boy, at fourteen; if a girl, at twelve. 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.
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.
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 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 relatives 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
dispose of only half his estate by will; if he leaves two children, he
can dispose only of one third; if he leaves three or more children, then
he can dispose by will of only one fourth of his estate. In England, a
man can disinherit both his wife and children. These, and many other
matters,--bequests in trust, succession of men dying intestate, heirs at
law, etc.,--were regulated by the Romans in ways on which our modern
legislators have improved little or none.
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 obligations,--_aut re, aut verbis, aut literis, aut consensu_.
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,--security for
indebtedness. Till the subject is actually lent, deposited, or pledged,
it does not form the special contract of loan, deposit, or pledge."
Next to the perfection of contracts by _re_,--the intervention of
things,--were obligations contracted by _verbis_, spoken _words_, and by
_literis_, or writings. The _verborum obligatio_ was contracted by
uttering certain words of formal 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.
The _obligatio literis_ was a written acknowledgment of debt, chiefly
employed when money was borrowed; but the creditor could not sue upon a
note within two years from its date, without being called upon also to
prove that the money was in fact paid to the debtor.
Contracts perfected by consent, _consensu_, had reference to sale,
hiring; partnership, and mandate, or orders to be carried out by agents.
All contracts of sale were good without writing.
Acts which caused damage to another opened a new class of cases. The
law obliged the wrong-doer to make reparation, and this responsibility
extended to damages arising not only from positive acts, but from
negligence or imprudence. In cases of libel or slander, the truth of the
allegation might be pleaded in justification. 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-defence, 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,--a provision that some of our modern laws might advantageously
revive. 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 anything was thrown from a window
giving on 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.
Legal claims 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.
By the ancient constitution, the king had the prerogative of
determining civil causes. The right then devolved on the consuls,
afterward on the praetor, and in certain cases on the curule and
plebeian ediles, who were charged with the internal police of the city.
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.
The praetor delegated his power to three classes of judges, called
respectively _judex_, _arbiter_, and _recuperator_. 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, or
judge, 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
recuperators heard and determined cases, but the number appointed for
each case was usually three or five.
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. 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, besides 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. At first, the duties of the praetorian
prefects were purely military, but finally they 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.
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 relatives,
and slaves could not bear evidence, nor any person who had a strong
enmity against either party. The witnesses were required to give their
testimony on oath. In most cases two witnesses were enough to prove a
fact. When witnesses gave conflicting testimony, the judge regarded
those who were most worthy of credit rather than those who were most
numerous. 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.
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 even to the Emperor. In the provinces
there was an appeal from the municipal magistrates to the governors, and
from them to the Emperor, as Paul appealed from Festus to Caesar. Under
Justinian no appeal was allowed from a suit which did not involve at
least twenty pounds in gold.
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 _quaestors_. These were finally
established into regular and permanent courts, called _quaestores
perpetui_. 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 on 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 afterward from the
equestrians, and then again from both orders. But in process of time the
quaestores perpetui gave place to imperial magistrates. The accused
defended himself in person or by counsel.
The Romans divided _crimes_ into public and private. Private crimes
could be prosecuted only by the party injured, and were generally
punished by pecuniary fines, as among the old Germanic nations.
Of public crimes the _crimen laesae majestatis_, or treason, was
regarded as the greatest; and this was punished with death and with
confiscation of goods, 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, that his memory might become infamous; and this
barbarous practice was perpetuated in France and Scotland as late as the
beginning of the seventeenth century. In England men have been executed
for treasonable words. Besides 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 offences were punished by pecuniary
penalties.