skill, of an elective king, a council of nobles, and a general assembly
of the people. War and religion were administered by the supreme
magistrate; and he alone proposed the laws, which were debated in the
senate, and finally ratified or rejected by a majority of votes in
the thirty _curi_ or parishes of the city. Romulus, Numa, and Servius
Tullius, are celebrated as the most ancient legislators; and each
of them claims his peculiar part in the threefold division of
jurisprudence. The laws of marriage, the education of children, and the
authority of parents, which may seem to draw their origin from _nature_
itself, are ascribed to the untutored wisdom of Romulus. The law of
_nations_ and of religious worship, which Numa introduced, was derived
from his nocturnal converse with the nymph Egeria. The _civil_ law is
attributed to the experience of Servius: he balanced the rights and
fortunes of the seven classes of citizens; and guarded, by fifty new
regulations, the observance of contracts and the punishment of crimes.
The state, which he had inclined towards a democracy, was changed by the
last Tarquin into a lawless despotism; and when the kingly office was
abolished, the patricians engrossed the benefits of freedom. The royal
laws became odious or obsolete; the mysterious deposit was silently
preserved by the priests and nobles; and at the end of sixty years, the
citizens of Rome still complained that they were ruled by the arbitrary
sentence of the magistrates. Yet the positive institutions of the kings
had blended themselves with the public and private manners of the city,
some fragments of that venerable jurisprudence were compiled by the
diligence of antiquarians, and above twenty texts still speak the
rudeness of the Pelasgic idiom of the Latins.
I shall not repeat the well-known story of the Decemvirs, who sullied by
their actions the honor of inscribing on brass, or wood, or ivory, the
Twelve Tables of the Roman laws. They were dictated by the rigid and
jealous spirit of an aristocracy, which had yielded with reluctance to
the just demands of the people. But the substance of the Twelve Tables
was adapted to the state of the city; and the Romans had emerged
from Barbarism, since they were capable of studying and embracing the
institutions of their more enlightened neighbors. A wise Ephesian was
driven by envy from his native country: before he could reach the shores
of Latium, he had observed the various forms of human nature and civil
society: he imparted his knowledge to the legislators of Rome, and a
statue was erected in the forum to the perpetual memory of Hermodorus.
The names and divisions of the copper money, the sole coin of the
infant state, were of Dorian origin: the harvests of Campania and Sicily
relieved the wants of a people whose agriculture was often interrupted
by war and faction; and since the trade was established, the deputies
who sailed from the Tyber might return from the same harbors with a more
precious cargo of political wisdom. The colonies of Great Greece had
transported and improved the arts of their mother country. CumÊ and
Rhegium, Crotona and Tarentum, Agrigentum and Syracuse, were in the
rank of the most flourishing cities. The disciples of Pythagoras applied
philosophy to the use of government; the unwritten laws of Charondas
accepted the aid of poetry and music, and Zaleucus framed the republic
of the Locrians, which stood without alteration above two hundred years.
From a similar motive of national pride, both Livy and Dionysius are
willing to believe, that the deputies of Rome visited Athens under the
wise and splendid administration of Pericles; and the laws of Solon were
transfused into the twelve tables. If such an embassy had indeed been
received from the Barbarians of Hesperia, the Roman name would have been
familiar to the Greeks before the reign of Alexander; and the faintest
evidence would have been explored and celebrated by the curiosity of
succeeding times. But the Athenian monuments are silent; nor will it
seem credible that the patricians should undertake a long and perilous
navigation to copy the purest model of democracy. In the comparison of
the tables of Solon with those of the Decemvirs, some casual resemblance
may be found; some rules which nature and reason have revealed to every
society; some proofs of a common descent from Egypt or Phnicia. But in
all the great lines of public and private jurisprudence, the legislators
of Rome and Athens appear to be strangers or adverse at each other.
Chapter XLIV: Idea Of The Roman Jurisprudence.--Part II.
Whatever might be the origin or the merit of the twelve tables, they
obtained among the Romans that blind and partial reverence which
the lawyers of every country delight to bestow on their municipal
institutions. The study is recommended by Cicero as equally pleasant and
instructive. "They amuse the mind by the remembrance of old words and
the portrait of ancient manners; they inculcate the soundest principles
of government and morals; and I am not afraid to affirm, that the brief
composition of the Decemvirs surpasses in genuine value the libraries of
Grecian philosophy. How admirable," says Tully, with honest or affected
prejudice, "is the wisdom of our ancestors! We alone are the masters of
civil prudence, and our superiority is the more conspicuous, if we deign
to cast our eyes on the rude and almost ridiculous jurisprudence of
Draco, of Solon, and of Lycurgus." The twelve tables were committed
to the memory of the young and the meditation of the old; they were
transcribed and illustrated with learned diligence; they had escaped the
flames of the Gauls, they subsisted in the age of Justinian, and their
subsequent loss has been imperfectly restored by the labors of modern
critics. But although these venerable monuments were considered as the
rule of right and the fountain of justice, they were overwhelmed by the
weight and variety of new laws, which, at the end of five centuries,
became a grievance more intolerable than the vices of the city. Three
thousand brass plates, the acts of the senate of the people, were
deposited in the Capitol: and some of the acts, as the Julian law
against extortion, surpassed the number of a hundred chapters. The
Decemvirs had neglected to import the sanction of Zaleucus, which so
long maintained the integrity of his republic. A Locrian, who proposed
any new law, stood forth in the assembly of the people with a cord
round his neck, and if the law was rejected, the innovator was instantly
strangled.
The Decemvirs had been named, and their tables were approved, by an
assembly of the _centuries_, in which riches preponderated against
numbers. To the first class of Romans, the proprietors of one hundred
thousand pounds of copper, ninety-eight votes were assigned, and
only ninety-five were left for the six inferior classes, distributed
according to their substance by the artful policy of Servius. But the
tribunes soon established a more specious and popular maxim, that every
citizen has an equal right to enact the laws which he is bound to
obey. Instead of the _centuries_, they convened the _tribes_; and the
patricians, after an impotent struggle, submitted to the decrees of an
assembly, in which their votes were confounded with those of the meanest
plebeians. Yet as long as the tribes successively passed over narrow
_bridges_ and gave their voices aloud, the conduct of each citizen
was exposed to the eyes and ears of his friends and countrymen. The
insolvent debtor consulted the wishes of his creditor; the client would
have blushed to oppose the views of his patron; the general was followed
by his veterans, and the aspect of a grave magistrate was a living
lesson to the multitude. A new method of secret ballot abolished the
influence of fear and shame, of honor and interest, and the abuse of
freedom accelerated the progress of anarchy and despotism. The
Romans had aspired to be equal; they were levelled by the equality of
servitude; and the dictates of Augustus were patiently ratified by
the formal consent of the tribes or centuries. Once, and once only,
he experienced a sincere and strenuous opposition. His subjects had
resigned all political liberty; they defended the freedom of domestic
life. A law which enforced the obligation, and strengthened the bonds
of marriage, was clamorously rejected; Propertius, in the arms of Delia,
applauded the victory of licentious love; and the project of reform was
suspended till a new and more tractable generation had arisen in the
world. Such an example was not necessary to instruct a prudent usurper
of the mischief of popular assemblies; and their abolition, which
Augustus had silently prepared, was accomplished without resistance, and
almost without notice, on the accession of his successor. Sixty thousand
plebeian legislators, whom numbers made formidable, and poverty secure,
were supplanted by six hundred senators, who held their honors, their
fortunes, and their lives, by the clemency of the emperor. The loss of
executive power was alleviated by the gift of legislative authority; and
Ulpian might assert, after the practice of two hundred years, that the
decrees of the senate obtained the force and validity of laws. In the
times of freedom, the resolves of the people had often been dictated by
the passion or error of the moment: the Cornelian, Pompeian, and Julian
laws were adapted by a single hand to the prevailing disorders; but the
senate, under the reign of the CÊsars, was composed of magistrates and
lawyers, and in questions of private jurisprudence, the integrity of
their judgment was seldom perverted by fear or interest.
The silence or ambiguity of the laws was supplied by the occasional
edicts of those magistrates who were invested with the _honors_ of the
state. This ancient prerogative of the Roman kings was transferred, in
their respective offices, to the consuls and dictators, the censors and
prÊtors; and a similar right was assumed by the tribunes of the people,
the ediles, and the proconsuls. At Rome, and in the provinces, the
duties of the subject, and the intentions of the governor, were
proclaimed; and the civil jurisprudence was reformed by the annual
edicts of the supreme judge, the prÊtor of the city. As soon as he
ascended his tribunal, he announced by the voice of the crier, and
afterwards inscribed on a white wall, the rules which he proposed to
follow in the decision of doubtful cases, and the relief which his
equity would afford from the precise rigor of ancient statutes. A
principle of discretion more congenial to monarchy was introduced into
the republic: the art of respecting the name, and eluding the efficacy,
of the laws, was improved by successive prÊtors; subtleties and fictions
were invented to defeat the plainest meaning of the Decemvirs, and where
the end was salutary, the means were frequently absurd. The secret or
probable wish of the dead was suffered to prevail over the order of
succession and the forms of testaments; and the claimant, who was
excluded from the character of heir, accepted with equal pleasure from
an indulgent prÊtor the possession of the goods of his late kinsman or
benefactor. In the redress of private wrongs, compensations and fines
were substituted to the obsolete rigor of the Twelve Tables; time and
space were annihilated by fanciful suppositions; and the plea of
youth, or fraud, or violence, annulled the obligation, or excused the
performance, of an inconvenient contract. A jurisdiction thus vague and
arbitrary was exposed to the most dangerous abuse: the substance, as
well as the form, of justice were often sacrificed to the prejudices of
virtue, the bias of laudable affection, and the grosser seductions of
interest or resentment. But the errors or vices of each prÊtor expired
with his annual office; such maxims alone as had been approved by reason
and practice were copied by succeeding judges; the rule of proceeding
was defined by the solution of new cases; and the temptations of
injustice were removed by the Cornelian law, which compelled the
prÊtor of the year to adhere to the spirit and letter of his first
proclamation. It was reserved for the curiosity and learning of Adrian,
to accomplish the design which had been conceived by the genius of
CÊsar; and the prÊtorship of Salvius Julian, an eminent lawyer,
was immortalized by the composition of the Perpetual Edict. This
well-digested code was ratified by the emperor and the senate; the long
divorce of law and equity was at length reconciled; and, instead of the
Twelve Tables, the perpetual edict was fixed as the invariable standard
of civil jurisprudence.
From Augustus to Trajan, the modest CÊsars were content to promulgate
their edicts in the various characters of a Roman magistrate; and, in
the decrees of the senate, the _epistles_ and _orations_ of the prince
were respectfully inserted. Adrian appears to have been the first who
assumed, without disguise, the plenitude of legislative power. And this
innovation, so agreeable to his active mind, was countenanced by the
patience of the times, and his long absence from the seat of government.
The same policy was embraced by succeeding monarchs, and, according to
the harsh metaphor of Tertullian, "the gloomy and intricate forest
of ancient laws was cleared away by the axe of royal mandates and
_constitutions_." During four centuries, from Adrian to Justinian
the public and private jurisprudence was moulded by the will of the
sovereign; and few institutions, either human or divine, were permitted
to stand on their former basis. The origin of Imperial legislation was
concealed by the darkness of ages and the terrors of armed despotism;
and a double fiction was propagated by the servility, or perhaps the
ignorance, of the civilians, who basked in the sunshine of the Roman and
Byzantine courts. 1. To the prayer of the ancient CÊsars, the people
or the senate had sometimes granted a personal exemption from the
obligation and penalty of particular statutes; and each indulgence was
an act of jurisdiction exercised by the republic over the first of
her citizens. His humble privilege was at length transformed into the
prerogative of a tyrant; and the Latin expression of "released from the
laws" was supposed to exalt the emperor above _all_ human restraints,
and to leave his conscience and reason as the sacred measure of his
conduct. 2. A similar dependence was implied in the decrees of the
senate, which, in every reign, defined the titles and powers of an
elective magistrate. But it was not before the ideas, and even the
language, of the Romans had been corrupted, that a _royal_ law, and an
irrevocable gift of the people, were created by the fancy of Ulpian, or
more probably of Tribonian himself; and the origin of Imperial power,
though false in fact, and slavish in its consequence, was supported on
a principle of freedom and justice. "The pleasure of the emperor has the
vigor and effect of law, since the Roman people, by the royal law,
have transferred to their prince the full extent of their own power and
sovereignty." The will of a single man, of a child perhaps, was allowed
to prevail over the wisdom of ages and the inclinations of millions; and
the degenerate Greeks were proud to declare, that in his hands alone
the arbitrary exercise of legislation could be safely deposited. "What
interest or passion," exclaims Theophilus in the court of Justinian,
"can reach the calm and sublime elevation of the monarch? He is already
master of the lives and fortunes of his subjects; and those who have
incurred his displeasure are already numbered with the dead." Disdaining
the language of flattery, the historian may confess, that in questions
of private jurisprudence, the absolute sovereign of a great empire can
seldom be influenced by any personal considerations. Virtue, or even
reason, will suggest to his impartial mind, that he is the guardian
of peace and equity, and that the interest of society is inseparably
connected with his own. Under the weakest and most vicious reign, the
seat of justice was filled by the wisdom and integrity of Papinian and
Ulpian; and the purest materials of the Code and Pandects are inscribed
with the names of Caracalla and his ministers. The tyrant of Rome was
sometimes the benefactor of the provinces. A dagger terminated the
crimes of Domitian; but the prudence of Nerva confirmed his acts, which,
in the joy of their deliverance, had been rescinded by an indignant
senate. Yet in the _rescripts_, replies to the consultations of the
magistrates, the wisest of princes might be deceived by a partial
exposition of the case. And this abuse, which placed their hasty
decisions on the same level with mature and deliberate acts of
legislation, was ineffectually condemned by the sense and example of
Trajan. The _rescripts_ of the emperor, his _grants_ and _decrees_, his
_edicts_ and _pragmatic sanctions_, were subscribed in purple ink,
and transmitted to the provinces as general or special laws, which the
magistrates were bound to execute, and the people to obey. But as their
number continually multiplied, the rule of obedience became each day
more doubtful and obscure, till the will of the sovereign was fixed and
ascertained in the Gregorian, the Hermogenian, and the Theodosian codes.
* The two first, of which some fragments have escaped, were framed by
two private lawyers, to preserve the constitutions of the Pagan emperors
from Adrian to Constantine. The third, which is still extant, was
digested in sixteen books by the order of the younger Theodosius to
consecrate the laws of the Christian princes from Constantine to his own
reign. But the three codes obtained an equal authority in the tribunals;
and any act which was not included in the sacred deposit might be
disregarded by the judge as spurious or obsolete.
Chapter XLIV: Idea Of The Roman Jurisprudence.--Part III.
Among savage nations, the want of letters is imperfectly supplied by
the use of visible signs, which awaken attention, and perpetuate the
remembrance of any public or private transaction. The jurisprudence of
the first Romans exhibited the scenes of a pantomime; the words were
adapted to the gestures, and the slightest error or neglect in the
_forms_ of proceeding was sufficient to annul the _substance_ of the
fairest claim. The communion of the marriage-life was denoted by the
necessary elements of fire and water; and the divorced wife resigned the
bunch of keys, by the delivery of which she had been invested with the
government of the family. The manumission of a son, or a slave, was
performed by turning him round with a gentle blow on the cheek; a work
was prohibited by the casting of a stone; prescription was interrupted
by the breaking of a branch; the clinched fist was the symbol of a
pledge or deposit; the right hand was the gift of faith and confidence.
The indenture of covenants was a broken straw; weights and scales were
introduced into every payment, and the heir who accepted a testament was
sometimes obliged to snap his fingers, to cast away his garments, and to
leap or dance with real or affected transport. If a citizen pursued any
stolen goods into a neighbor's house, he concealed his nakedness with
a linen towel, and hid his face with a mask or basin, lest he should
encounter the eyes of a virgin or a matron. In a civil action the
plaintiff touched the ear of his witness, seized his reluctant adversary
by the neck, and implored, in solemn lamentation, the aid of his
fellow-citizens. The two competitors grasped each other's hand as if
they stood prepared for combat before the tribunal of the prÊtor; he
commanded them to produce the object of the dispute; they went, they
returned with measured steps, and a clod of earth was cast at his feet
to represent the field for which they contended. This occult science
of the words and actions of law was the inheritance of the pontiffs
and patricians. Like the Chaldean astrologers, they announced to their
clients the days of business and repose; these important trifles were
interwoven with the religion of Numa; and after the publication of the
Twelve Tables, the Roman people was still enslaved by the ignorance of
judicial proceedings. The treachery of some plebeian officers at length
revealed the profitable mystery: in a more enlightened age, the
legal actions were derided and observed; and the same antiquity which
sanctified the practice, obliterated the use and meaning of this
primitive language.