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.
iv. 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.