The Civil Law
Translated and Edited by S. P. Scott
THE original sources of Roman law, lost in the obscurity of bygone centuries, are unknown. All efforts to trace them have, in the absence of authentic records, or even of reliable tradition, proved fruitless and unprofitable. Any monuments of former legislation which may have existed during the regal domination, or subsequently under republican rule, undoubtedly perished at the time of the invasion by the Gauls, or in the domestic convulsions which, at frequent intervals, afflicted the ancient city. There is no doubt, however, that Roman jurisprudence, like that of every people in the early period of its history, was largely founded upon custom, partly indigenous, partly borrowed from other nations, and arranged, formulated, maintained, and perpetuated by sacerdotal influence. The first jurisconsults were invariably priests. So apparently indissoluble has always been the primitive connection between law and religion that, even in England, the office of Chancellor was, almost without exception, filled by ecclesiastics, until the second quarter of the seventeenth century. This universal and essential characteristic of legal establishment and knowledge indicates the difficulty experienced by ancient countries in the enforcement of the rules upon which their very existence depended, and which required the all-powerful aid of superstition to accomplish that purpose. The close union of the legal and sacerdotal systems is disclosed in the history of the Romans as in that of other races, by the custody of both religious and secular records and ordinances by the priesthood; by the semi-oracular decrees of the pontiffs; by the worship of ancestors, closely associated with the rule of succession; by the celebration of marriage, and the definition and observance of the rights and obligations resulting therefrom; by the constitution of the family, to whose head, invested with despotic authority, the designation "Pius," imparted the attributes of reverence, devotion, affection, and law.
The Roman Pontiff would naturally only preserve and admit to record such regulations as would, either directly or indirectly, have a tendency to increase or maintain the wealth, importance, and power of his order. His custody of the ordinances which governed all classes of the community, and which he had every opportunity and temptation to alter to suit his own purposes, together with the sacred character of his calling, gave him unbounded influence; an influence which continued to exist, despite the changes of government and religion, through all the centuries of Roman domination. The element of superstitious observance was conspicuous in every official ceremony, as well as in legal transactions and the multifarious occupations of private life. It was manifested alike in the selection and investiture of great dignitaries of state; in the solemn proceedings of popular assemblies; in the administration of civil and criminal justice; in the devotion of certain malefactors to the infernal gods; in the adoption of sanitary and sumptuary regulations; in the methods by which property of every description was acquired or lost. The earliest customs and legal enactments of the Romans of which we have any knowledge whatever disclose unmistakably the religious source from which they derive their origin, and the sacerdotal spirit that dictated their provisions.
There were two distinct forms of worship observed at Rome, the sacra publica and the sacra privata. The first of these, as the term implies, referred to the religion of the State, and was celebrated at the public expense; the second involved the invocation of, and sacrifices to the tutelary gods of the gens (that is the race or clan), the household, or the individual. The lares or spirits of departed relatives, to whom this pious homage was addressed, were presumed to exercise a beneficent and protective influence upon their surviving descendants, and were the prototypes of the patron saints of the Roman Catholic calendar. The jus sacrarum, or right of ancestral worship, was, however, not indiscriminately enjoyed, but was the peculiar privilege of the patrician order. Members of the latter were ingenui, or freeborn a term derived from gens although the words ingenuus and gentilis were by no means synonymous, the latter being the more comprehensive of the two. To belong to the class of gentiles, freebirth, identity of name, the same worship, the fact that no ancestor had ever been subject to servile dependence or patronage, or the person in question had, at any time, suffered forfeiture of civil rights were indispensable requisites: "Gentilis dicitur et ex eodem genere ortus, et is qui simile nomine appellatur." While the meaning and application of the term are at present uncertain, it is sufficiently established that the basis of the gentile tie was either actual or presumed consanguinity. It has been asserted that a common place of residence was also essential to the constitution of a gens in ancient times. Each curia, or division of a city corresponding to our ward, included ten gentes which were designated respectively by the family names of their members. The rights of the various gentes the union of whose individual constituents, founded upon the blood-relationship to which was directly traceable their title to aristocratic superiority, formed the most important and powerful body of the State were sedulously guarded and enforced by both the secular and religious authorities. In no part of the Roman polity is the intimate association of religion and law more conspicuous than in the institution of the gens, whose origin was patriarchal; and the privileges and responsibilities to which it gave rise were manifested in the administration of government, the control of the family, and the mutual relations existing between the members of the community and the ruling power. The establishment of the sacra publica was largely attributable to its influence, exerted in ages of which no record survives. It has even been suggested that the Roman Senate, in its inception, was organized as representative of the assembled gentes, an hypothesis supported by plausible inferences drawn from the statements of many classic writers.
Among the laws contained in the Code of Hammurabi, the Gentoo Code, and the Institutes of Menu, which have come down to us from antiquity, and antedate the foundation of the Eternal City by hundreds of centuries, are to be found many precepts and formulas identical in purport and expression with those scattered throughout the treatises of Roman jurisprudence. Their frequent occurrence suggests an origin that can hardly be accidental; and, considering the different conditions of race, religion, climate, society, and environment under which they were promulgated, would seem to indicate conclusively that their acknowledged usefulness and adaptability to the pursuits and exigencies of humanity have been transmitted to succeeding peoples through countless generations, rather than to assume that their presence in the volumes of the civil law is attributable to chance, or mere coincidence. The majority of these rules have reference to the legitimate union of the sexes, and the possession of means for the sustenance of offspring, thereby insuring the existence and survival of the race, subjects whose importance is conclusively emphasized by one of the most accomplished of English jurists, as follows: "Almost all the relative duties of human life will be found more immediately, or more remotely, to arise out of the two great institutions of property and marriage. They constitute, preserve, and improve society. Upon their gradual improvement depends the progressive civilization of mankind; on them rests the whole order of civil life." We are told by Horace, that the first efforts of law-givers to civilize men consisted in strengthening and regulating these institutions, and fencing them round with rigorous penal laws.
"Oppida coeperunt munire, et ponere leges, Ne quis fur esset, neu latro, neu quis adulter."
The force of custom cannot be ignored in the consideration of the sources of Roman jurisprudence.
The great mass of Roman law owed its establishment not to measures adopted by regularly qualified officials designated for that purpose, but to customs generally regarded as advantageous, and often confirmed by religious sanction which tacitly accepted as rules of public and private conduct, had in the course of centuries obtained the character and authority of legislative enactments. These were the mores majorum, so frequently mentioned by ancient jurisconsults and historians, and regarded by the people at large with far greater veneration, and as having a better claim to implicit obedience than the recent edicts of despotic sovereigns, or the inconsiderate and often suspicious acts of popular assemblies. The religious element which entered so largely into the composition and establishment of these time-honored customs was, as already stated, unquestionably the principal cause of their endurance and perpetuation. It has been most aptly remarked that the rnental condition of primitive humanity, in considering the observances inculcated by a man's ancestors as public and private obligations, exactly corresponds with the feeling of reverence with which it contemplates the resistless and awe-inspiring manifestations of natural phenomena. The tenacity with which semibarbarians adhere to the long-continued practices of their ancestors is proverbial. The reunion of three different tribes Romans, Sabines, and Luceres formed the nucleus of that mighty state which in time bequeathed its enactments, its judicial organization, and its method of legal procedure, to subsequent ages. The customs of these tribes, while to some extent diverse, were undoubtedly in many respects similar, perhaps identical; as all three were subjected to practically the same environment, their amalgamation must have been effected without difficulty; and their incorporation into the polity of the growing commonwealth exerted no inconsiderable influence upon the destinies of the Kingdom, the Republic, and the Empire, as well as upon the innumerable tributary nations that acknowledged their supremacy.
 Mackintosh, Miscellaneous Works, Vol. I, Page 368.
Unwritten, or customary law, is said by Aulus Gellius to be that established by the implied consent and practice of illiterate men: "Jus non scriptum tacito et illiterado hominum consensu et moribus expressum est." In connection with this, the opinion has been advanced that this definition does not preclude its original dependence upon a legislative act of some description, or upon some agreement, the circumstances and language of whose adoption or acceptance have long since vanished from the memory of man; a self-evident deduction, as any ordinance entitled to and requiring obedience, must necessarily have emanated from some generally recognized authoritative source.
With the disappearance of the actual participation of the Roman people in the affairs of government in consequence of the arbitrary measures of Constantine, which practically invested the emperor with all legislative power, the influence of custom in the formation of law permanently ceased to exist. The vox populi was suppressed; the duties of the Senate were restricted to registering the imperial edicts; the magistrate no longer enjoyed the latitude of interpretation possessed by his predecessors, who not infrequently exercised judicial functions in the formulation and promulgation of laws; and the sovereign, invested with divine attributes and despotic power, whose right it was both treason and sacrilege to dispute, became the acknowledged source of all legislation.
As a law could be established by custom, so it could be rendered inoperative by the adoption of one in opposition to it, or by being permitted to fall into desuetude. This rule, however, was not applicable to ordinary enactments or imperial decrees which, having been committed to writing and published, required a formal act to effect their repeal, which could not take place by implication. The doctrine prevalent at Rome that where the provisions of different statutes conflicted with one another the more recent one should be accepted: "Jus posterius derogat priori," even without any special statement to that effect, is now of general application everywhere.
In the interpretation of contracts classed as bonæ fidei, when any doubt existed as to the intention of the parties, the magistrate was required to decide in accordance with the custom applicable to such cases:
"Ea enim quæ sunt moris et consuetudinis in bonæ fidei judiciis debent venire."
The Roman State was, in the first place, composed of two separate tribes or nationalities, the Ramnes, and the Quirites or Sabines, probably differing somewhat in habits, usages, government, and religion, whose contiguity led to their ultimate amalgamation, and whose traditions retained the memory of their dual origin even to the end of the Empire. Various institutions and observances of the two chief component elements of the Roman people have been mentioned as symbolical of the former separate existence of those tribes. The legend of the twins, as well as the empty throne, and the crown and sceptre said to have been placed beside his own by Romulus after the homicide of Remus, and referred to by Servius, were indicative of this double origin. The head of Janus, which appears upon the earliest Roman coinage, is stated by Niebuhr to be a reminiscence of a similar character. The extraordinary attachment which successive generations evince for a once well-established custom, no matter what may be its derivation, is again illustrated by the persistence of the twofold, supreme magisterial jurisdiction dating from the foundation of the City; suspended during the regal epoch; revived in the Consulate; represented by the municipal duumvirates; and which shorn of actual power, and subsisting merely as an honorary distinction, survived until the final period of imperial supremacy.
The original government of Rome was composed of the King, the Senate, and the Comitia, or popular assemblies. The monarch was the fountain of justice, and exercised the irresponsible power of a dictator. All legislative measures were instituted and framed by him, with the advice of the Senate, and the nominal approval of the people.
The Leges Regiæ, or laws of the regal period, by reason of the prevailing religious character of the fragments which have come down to us, have, with considerable probability, been ascribed to the College of Pontiffs. It has, indeed, been suggested that the primal form of government in Italy was purely sacerdotal, and that the King was merely an evolution of the priest; an hypothesis which, however plausible, derives no direct confirmation from either the authentic or legendary history of Rome. We are principally indebted to Dionysius for the meagre accounts of the Leges Regiæ that we possess, which are, for the most part, only allusions to their purport and effect; for none of these primitive laws have, even in the form of veritable extracts, been transmitted to posterity, although there is good reason to believe that some of their provisions were incorporated into the Twelve Tables. With the overthrow of the Kings all reference to the Leges Regiæ as a basis for judicial decisions ceased, as they could no longer be cited as of valid authority. A collection of these laws, called the "Jus Civile Papirianum," from Sextus Papirius, Pontifex Maximus, its compiler, was subsequently made; but it, like others which may have once existed, has disappeared.
 De Æneide 1, 276.
 History of Rome, I, 293.
Much uncertainty attaches to the sources from which the Twelve Tables were derived. While the greater portion of their contents may positively be said to have a Latin origin, still there remains much to be accounted for, and for whose existence neither history nor tradition offers a reliable or satisfactory explanation.
The generally indigenous character of this famous code is, however, apparent to everyone familiar with the worship, the customs, the prejudices, and the superstitions of the Roman people. Several hundred years had already elapsed since a vagrant tribe of freebooters were said to have fixed their residence upon the banks of the Tiber. Amalgamation with other semi-barbarians, somewhat superior in culture, increased their numbers and improved their manners, while communicating to them a certain amount of knowledge, even though imperfect, of the arts of civilization. During those ages, a complex form of government had been evolved; rules for the administration of justice formulated; commercial relations with adjoining nations established; manufactures set in operation; and the various requisites for the maintenance of an ambitious and growing State provided. Such conditions were clearly incompatible with those prevailing at the period of the foundation of the city, and therefore certain laws, whatever their nature, must previously have been enacted for the efficient protection of the lives and property of the members of the community to insure its preservation.
To Greece has been wrongfully attributed much of the substance of the Twelve Tables, due to the fact that a commission was, after the expulsion of the kings by the Romans, despatched to that country with a view to the ascertainment and adoption of whatever might be found advantageous in Grecian jurisprudence, although the legislation of the Greeks was, notwithstanding their artistic and oratorical ascendency, notoriously crude and defective.
Judging from the writings of Cicero, a most respectable authority, who, while lavishing unbounded praise upon the philosophical wisdom which he asserted distinguished the Twelve Tables, entertained anything but a favorable opinion of Greek jurisprudence in general, much of their contents could not have been obtained from Greece.
It is, however, stated by him that some of Solon's laws were unquestionably inserted into the new code, one of them at least which related to the unseemly and vociferous mourning, and self-inflicted disfigurement of women at funerals without any appreciable alteration: "Quam legem eisdem prope urbis nostri decemviri in decimam tabulam coniecerunt; nam de tribus reciniis et pleraque illa Solonis sunt; de lamentis vero expressa verbis sunt. Mulieres gênas ne radunto nec lessum funeris ergo habento."
 De Legibus II, 25, 68.
It was not to the Greeks or their Italian colonies, but to their im« mediate neighbors, the Etruscans, that the Romans were principally indebted for their religion, their laws, and their rudiments of art which were largely the foundation of their future greatness. At a date, now unknown, but of remote antiquity, central and southern Italy had been occupied by foreign adventurers, most probably Lydians, who brought with them the customs, traditions, culture, and civilization of the Orient. At one time they possessed the greater part of the Italian peninsula, and their domination extended to the islands of Sardinia, Corsica, and Elba. Their country was divided into three great provinces, and the provinces into separate states or commonwealths, bound together in a confederacy for mutual protection, each of which had its separate capital, which exercised supreme jurisdiction over all the territory subject to its control; a system bearing a close analogy to those of Greece, and mediæval Italy, whose independent cities and principalities exerted such an important influence over their political destinies. This condition, and the peaceable character of the inhabitants, eventually subjected the latter to the authority of the truculent Romans, dominated from the very beginning by the spirit of war and conquest. In every walk in life; in every department of knowledge; in the ceremonies of religious worship; in the organization of government; in the manifestations and symbolism of art; in the formation of language; in the separation of classes and the rigid maintenance of caste; in military organization; in the existence of habits, usages, and amusements; are traceable the direct effect of intimate association with one of the most refined and polished nations of antiquity. The purple, the distinctive color reserved for the use of royalty, was borrowed from the Etruscans. So was the eagle, the object of superstitious reverence, borne at the head of the legion; the trumpet which sounded the charge; and the toga, the peculiar badge of Roman citizenship. The musical instruments, dances, and games, adopted and practised by the conqueror were mainly Etruscan. In ancient Etruria, as at Rome, Church and State were united in the ruler; a proud and powerful aristocracy was everywhere predominant; and the lower classes were divided into serfs and slaves, whose condition was far more pitiable than that of the later coloni and servi. The institutions and national traits of the Etruscans exhibited unmistakable indications of their Oriental origin, thus justifying the remark of Seneca: "Tuscos Asia sibi vindicat." Nor was the influence of Etruria upon Rome confined to the mere adoption of the arts and conveniences of civilization; it extended even to the royal office. The elective character of the Roman kingdom permitted the accession of one of its citizens to the throne. Tarquinius Priscus was, on his mother's side, of Etruscan lineage.
A nation so prosperous and enlightened, which had attained to such superiority in the arts of peace as to rival the finished efforts of Grecian taste and genius, must necessarily have also had a well-established and efficient judiciary. Unfortunately none of its literary memorials have survived. We know, however, that they once existed; that writers in every branch of letters flourished; and that its institutions of learning were held in high repute by their neighbors; as it was the practice of the Roman youth to repair to the Etruscan academies for the completion of their education. In the presence of such conditions, the lack of a comprehensive body of laws and a judiciary competent to enforce them can hardly be imagined; even though the limitation of legislative functions to the sacerdotal order must often have been productive of serious embarrassment, both in the exertion of public authority, and in the adjustment of the relations of individuals with one another.
The downfall of the Monarchy, followed by the foundation of the Republic, which was inevitably attended by the rejection of many laws incompatible with the existence and administration of popular government, necessitated the formation of a new system of jurisprudence; for which purpose, however, no satisfactory materials and precedents were afforded by the customs, history, or traditions of Rome. Notwithstanding that the king had been chosen by the people, and was, in theory at least, responsible to them for any encroachment upon their rights, he ruled with despotic sway, and practically exercised unlimited power, not only in religious matters, but also in the framing and enactment of legislation. The conflict of the aristocracy and the rabble, always fierce, and now rendered even more bitter by the insolence of the latter intoxicated with their newly acquired influence, rendered a reorganization of the legislative and magisterial branches of the government imperative. In spite of the efforts of the patrician order, whose members saw in such a project an attempt to curtail their privileges and influence, a law was passed about the middle of the fifth century before Christ authorizing the appointment of a commission to completely revise the existing code, and introduce such new laws as might be deemed advisable. Although the patricians were unable to prevent the adoption of this measure, they seem to have had no difficulty in dictating the selection of those empowered to execute it; and, at their instance, three commissioners, presumably taken from the aristocratic class, were sent to Greece to study its legal and judicial systems, and by combining the information acquired with that already available at home, devise a new and more effective method for the administration of justice. Upon their return, the patricians who, although they had in the meantime lost most of their power, still managed to secure the appointment of ten extraordinary officials, the Decemviri, who were invested with full legislative and executive authority. From their labors emanated the first known body of Roman law, which, called the Twelve Tables from the fact that it was divided into twelve sections, was engraved upon plates of bronze and set up in the Forum, where everyone required to obey it might familiarize himself with its provisions. The Tables were originally ten in number, but two others were subsequently added.
Exhaustive and persistent efforts for the reconstruction of this venerable body of laws have repeatedly been made by scholars, no two of whose versions, however, coincide. In the prevailing lack of positive information or reliable data, all attempts to this end must of course be incomplete, and the results largely speculative. Still, despite their fragmentary character, enough has been ascertained from these researches to enable us to form an intelligent idea of the general scope of the laws of the Twelve Tables; the spirit which prompted their enactments; the principles they inculcated; the method of legal procedure which they prescribed; and the penalties inflicted upon those who ventured to violate them. As an index of popular manners, religious ceremonies and political conditions, they have, notwithstanding their mutilated condition, proved invaluable to the historian.
The internal evidence of this compilation shows conclusively that the rules which it laid down, whatever might have been their origin, had long been established and obeyed by people accustomed to be subjected to the restraints essential to their intellectual and material development, and were not the mere haphazard and desultory efforts of a race like that of the Romans, which had not yet emerged from barbarism. But side by side with enlightened maxims of justice are to be seen doctrines embodying the most abject superstitions, and the imposition of penalties which well-informed, modern critics have pronounced incredible, on account of their atrocious and sanguinary character.
As in the case of the Leges Regiæ, from which as previously mentioned, many of their precepts undoubtedly were borrowed, the Twelve Tables disclose a sacerdotal influence which pervades them from beginning to end. The ritualistic element is everywhere prominent, revealing the primal sources of their derivation, and the union of the governing powers of Church and State. It is exceedingly improbable that any wholly original and untried regulations were incorporated into the Twelve Tables, although its compilers had authority to do this; nor is it likely that any important provision was adopted with which many Romans were not already more or less familiar, as no society, however backward, would be inclined to blindly accept laws whose operation had not hitherto been subjected to the decisive test of experience. Hence the collection may be considered as largely composed of legislative acts, and customs, which through immemorial observation had obtained legal force; in short, a concise summary of the rules of jurisprudence at that period existing at Rome, combined with many others taken from the codes of various nations, which the political sagacity of the compilers had deemed worthy of insertion into the one which they had been appointed to revise and amplify.
The most prominent characteristics of the Twelve Tables are their comprehensiveness and their conciseness. Every emergency which was likely to arise among the people for whose use they were established was fully provided for. The legal aspects and requirements of marriage and divorce; the reciprocal obligation of parent and child; the absolutely despotic paternal authority, peculiar to the Romans, deemed indispensable to the government of the family, and often exercised with merciless cruelty; the appointment and duties of guardians; the unrestricted right of testamentary disposition; the law of intestate succession; the sacred and inviolable nature of agreements formally executed; the sale and pledge of property; the transfer of ownership and possession; the qualifications of sureties; the duties of magistrates; the order of legal proceedings both in time and method; the rules governing the negotiation of loans and the payment of interest; the acquisition and loss of title by prescription; the fixing of responsibility in case of trespass; the organization and conduct of corporate bodies; the regulation of funerals and sepulture; and the penalties incurred by the commission of crimes, are enumerated and set forth with almost epigrammic terseness. This painstaking condensation of the legal principles and precepts applicable to the affairs of every-day life presents a remarkable contrast to the prolixity of many of Justinian's laws, absolutely irreconcilable with one another, and oppressed with a weight of high-sounding verbiage, whose interpretation increases the labors, contributes to the embarrassment, and evokes the anathemas of the student and the commentator.
The language in which the Twelve Tables were originally composed is harsh, unformed, and barbarous, bearing little resemblance to the elegant and polished idiom of subsequent times. Some of the words have long since become obsolete; the orthography of many of those that survive is radically altered; the numerous abbreviations contribute to their ambiguity; and it is said that even in the time of Cicero the most accomplished scholars and legal antiquaries differed as to their meaning and application, the ascertainment of which demanded the highest degree of expert knowledge.
Notwithstanding the obstacles which now confront the student in the restoration and construction of the phraseology and rules of this ancient compilation, its great value at the time when it was made cannot fail to be apparent to the most superficial observer, and its paragraphs, mangled, defective, and often unintelligible, as they are to-day, still afford us an instructive and suggestive picture of the primitive society for whose benefit they were framed, and represent the source of that vast and complex system of jurisprudence which, perfected by the accomplished lawyers of the Empire, now constitutes the foundation of modern legislative action and judicial procedure throughout the world.
History is silent as to the date when the Twelve Tables ceased to exist in their integrity, but their partial destruction and loss must, like those which attended the disappearance of other Roman monuments of law and literature, be ascribed to barbarian neglect and devastation.
The Twelve Tables were the epitome of the common law of Rome, which then renouncing its customary character, was thereafter to be considered as embraced in a number of statutes that had been solemnly accepted and sanctioned by a vote of the people. Prior to their adoption, the profession of advocate and jurisconsult had been exercised almost exclusively by the patricians, who composed the only class possessing a competent knowledge of jurisprudence, which practical monopoly they guarded as one of their most cherished privileges. All this, however, was changed when the inscriptions upon the bronze tablets posted in the Forum, enabled every citizen to become acquainted with the laws of his country and, in person, apply to the tribunals to redress his wrongs.
The provisions of the Twelve Tables required the defendant in an action to appear without delay; if he failed to do so, his adversary, having called the attention of bystanders to the fact, was authorized to arrest and bring him into court by force, of necessity. Personal service, however, could not be made upon a man outside the walls of his residence. Vehicles were despatched for those who, by reason of sickness or age, were unable to obey the summons. When security was demanded, only a person whose wealth was equal to that of him compelled to give it, was allowed to become surety; for a party litigant in indigent circumstances, anyone however poor, might act in that capacity. Compromise of all disputes was encouraged. The proverbial "law's delay" was not known to the ancient Romans. When the case came to trial, which had to take place in the morning, the parties themselves argued it, and the judge was compelled to render a decision before sunset of the same day. Continuances were always granted when either the magistrate, plaintiff, or defendant, was incapacitated from appearing on account of illness. Debtors were treated with great severity. After one had had judgment rendered against him, and did not discharge the obligation within thirty days, he could again be brought into court, the payment of the claim demanded, and, if it was not forthcoming, he could be loaded with chains, and imprisoned. When another term of sixty days had elapsed, he could be sold as a slave; or, where there were several creditors, his body might be divided among them.
A child born to a widow ten months after the death of her husband was legitimate. Unlimited authority for the disposition of their estates subject to the claims of creditors was conferred upon testators. When they did not appoint any heirs, and left no children, the nearest agnates were entitled to the succession; thus, while ignoring the right of primogeniture, the Twelve Tables always gave the preference to the direct descendants of males, to the prejudice of cognates. An estate could not legally be acquired by relatives in the ascending line. The next of kin were compelled to assume the guardianship of minors or spendthrifts, and as this trust was considered a public duty, only absolute incapacity for some reason or other, constituted a valid excuse. A sale was not held to have been concluded so as to pass the title to the property, even though delivery had actually taken place, unless the purchase-money had been paid, or security furnished. Undisputed enjoyment for one year in the case of personal, or for two years in that of real property, was sufficient to vest the ownership of the same in the possessor. Cohabitation uninterrupted by three nights of absence and continuing for one year, had the same effect as a legal marriage. When a man desired to divorce his wife, which he could do at his pleasure, he was required to state the reason for his act. While it is not expressly stated that the right was reciprocal, there is no doubt that this was the case, and that the wife enjoyed the same privilege. Divorce, however, is said to have been rare in the early ages of Rome, and a tradition of questionable authenticity asserts that it did not occur for five centuries after its foundation. If this were really the case, it cannot now be determined how much the permanency of matrimonial unions was due to religious influence or public policy, or whether the patria potestas of the husband, who held his wife in manum as a daughter, was not largely responsible for it; as irreconcilable conjugal disagreements owing to the weakness of human nature, must have been as frequent at Rome as elsewhere, and there is no good reason to assume the contrary. Controversies with reference to boundary lines, were, as they often are at the present day, settled by the decision of three arbiters whose award was final. Similar proceedings were enjoined to prevent rainwater falling upon adjacent land from damaging the premises of the complainant. No privileges could be granted, or laws enacted to the injury of individuals, or in violation of the rights to which all persons were entitled. A judge, or arbiter who, having accepted a bribe, rendered an unjust decision in consequence, was punished with death. The expenses allowed, and ceremonies to be observed at funerals, were prescribed with extraordinary minuteness; indicative of the abuse and extravagance which, no doubt, had hitherto prevailed, rendering these solemn rites an occasion for vulgar display, and frequently imposing intolerable burdens upon the family of the deceased.
In the administration of criminal justice, great solicitude was manifested for the preservation of the rights of the Roman citizen, whose person was, under ordinary circumstances, considered inviolable. No civis Romanus could be deprived of life or liberty by any magistrate, unless with the consent of the people evidenced by vote of the largest popular assembly, the Comitia Centuriata. Capital punishment which, at first, was not inflicted at Rome, and was always regarded with marked disfavor by the masses, when prescribed by the Twelve Tables, had, almost always, some direct or indirect connection with an act of sacrilege, that subjected the culprit to the wrath of an offended deity. In this curious compendium of ancient laws, as in those of all nations during the establishment of their political and social organization, a distinction is made between offences committed against the government, and those of which an individual is the object. The latter, considered of a personal or private character, were to be expiated either by what might be deemed a pecuniary equivalent for the damage sustained; or, when this was not secure, by infliction of the same injury upon the accused by way of retaliation. The Lex Talionis, in all its harshness, is laid down in the Seventh Law of Table VII. The same principle appears elsewhere in the penalties prescribed for perjury and arson, since the false witness was not afterwards allowed to testify, and the incendiary was liable to death by fire. The next of kin was authorized to enforce the Lex Talionis, which, in default of payment of the customary compensation, was held to be the only means of redress available to the injured party. Hence it is apparent that the rules of criminal jurisprudence as applied by courts of the present day were not known to the early Roman legislators.
Judicial reparation for injury was obtained by means of actiones ex delicto, or penal actions, and whatever was recovered was considered to partake rather of the nature of a fine for an illegal act, than as an indemnity for the wrong sustained. Therefore, in this respect, they differed materially from our actions of tort; nor was liability for what his ancestor had done transmitted to the heir of the defendant; "Nemo succedit in delicta." The magistrate was accustomed to assess the damages, dependent upon the character of the offence, and this was afterwards limited to the sum of twenty-five asses, except where serious injury had resulted. In the case of certain misdemeanors or torts, double or quadruple the value of the property impaired or destroyed was collected. When rendering judgment, fully as much attention was paid to the degree of provocation which prompted the injury, as to the loss which it caused. Well defined ideas of the personal responsibility incurred by the publication of slanders and libels were entertained at the epoch of the adoption of the Twelve Tables, and he who defamed another by attacking his reputation for probity, or publicly insulted him, as well as the author of pasquinades, was scourged until he died. All breaches of trust, especially those affecting minors, were visited with severe penalties.
The great respect with which the Twelve Tables were always regarded by the most eminent authorities, as the exemplar of all law, and the embodiment of the juridical experience of centuries, was not diminished with the progress and development of Roman jurisprudence. Admirably adapted to the conditions of the society for whose regulation they were promulgated, it would be unfair to judge them by the standards of our superior civilization, or apply to them the moral and political principles of the present age.
Gaius, like Paulus and Ulpian, the contemporary of Papinian, most revered of Roman jurists, stands first in order of time among the great lawyers whose works have either created or interpreted the rules of ancient jurisprudence. He lived during the reign of Hadrian and the Antonines, during the middle and latter part of the second century. The place of his birth, the circumstances of his life, his residence, that branch of his profession to which he especially devoted his labors as a commentator or a practitioner, even his cognomen, are absolutely unknown. From the fact that his family name has not come down to us for he never was designated by it, it has been surmised that he was of foreign origin, probably a native of Asia. He must, however, have enjoyed the privileges of citizenship, as otherwise, the consideration in which his literary efforts were held would never have been accorded to the works of a barbarian. He was a most voluminous author, but all of his books have been lost, except his "Institutes," an elementary treatise, and the foundation upon which the entire more modern fabric of Roman jurisprudence was constructed. Critics differ as to its character and object, some being of the opinion that it constitutes a complete series of lectures; others maintaining that it is merely the outline of a course to be pursued and expanded by oral instruction.
Although many extracts from Gaius appear scattered through the laws of Justinian, none of his writings were known to be extant until the discovery of the Institutes of Niebuhr at Verona in 1816, on a palimpsest, which had been utilized by some more pious than enlightened copyist for the preservation of the Epistles of St. Jerome.
Most esteemed for legal learning and perspicuity of diction of all the Roman jurisconsults, with the sole exception of Papinian, was Domitius Ulpianus, a native of Phoenicia, who was first the teacher, and then the secretary and trusted adviser of the Emperor Alexander Severus, by whom he was raised to the highest and most responsible posts in the government of the Empire. The principal work by which he is now known is the "Liber Singularis Regularum," a collection of opinions, rules, and decisions, of which at present only an abridgment exists. In addition to his profound acquaintance with the law in all its aspects, historical, judicial, and executory, his conciseness of expression and lucidity of style are his most distinguishing qualities. His merits are frequently alluded to in the Pandects, to which, in quantity of matter as well as in valuable erudition, he contributed more than any other legal authority. Ulpian has incurred the condemnation of posterity, because of his attachment to the ancient faith, and his pronounced antagonism to Christianity, but his sagacious counsel and talents for administration were far more valuable to the Empire than the maintenance of any form of religion, however popular, ever could be. His integrity and moral principle are sufficiently disclosed by his refusal to accede to the demands of military tyranny, which was the cause of his murder by the Prætorian Guards. Historians and legal writers alike have paid deserved tribute to his genius; and the prosperity of the reign of Alexander Severus was largely attributed to the soundness of his advice, and the consummate skill with which he exercised the functions of the political and judicial employments with which he was invested: "Quia Ulpiani consiliis rempublicam rexit."  Julius Paulus, who, to a thorough acquaintance with the law, added a taste for general literature and a talent for versification remarkable for his time, was another of that brilliant and accomplished body of lawyers who have, by their learning and abilities, immortalized the golden age of Roman jurisprudence. He, also, is only known to us through the survival of a single legal treatise, the "Sententiæ," in five books, addressed to his son; and a very small number of isolated fragments from his "Institutiones," which afford no adequate conception of the character or merits of the work from which they are derived. We are, however, to a certain extent, indemnified for this loss by the fact that the compilation of Justinian abounds in quotations from this author, the greater portion of the Digest alone being composed of extracts from the writings of Paulus and Ulpian.
The reputation of Paulus for legal acumen and extraordinary professional attainments, like those of his two famous contemporaries, continued unimpaired until the final dissolution of the Empire. A part of his works was incorporated into one of the earliest codes whose publication signalized the advent of a new and improved order of juridical procedure eventually to be erected upon the ruins of the ancient one which, in common with all other institutions of culture and civilization, had been overwhelmed by the disastrous tide of barbarian conquest.
 Lampridius, Alexander Severus, LXVI.
Not the least remarkable among the extraordinary circumstances attending the general revision and codification of the Roman law, was the origin of its author. We should naturally suppose that an undertaking of such magnitude and importance would only be projected and executed by a sovereign of gentle birth, finished education, literary taste, and profound legal knowledge. But this was far from being the case. Justinian, although educated at Constantinople by his uncle Justin who, formerly a shepherd, had raised himself by his talents and courage to the highest civil and military offices never displayed any unusual predilection for letters. Born in Dacia, the modern Bulgaria, his originally harsh and guttural name Uprauda, afterwards Latinized into the more elegant appellation by which he is generally known, suggests at once his plebeian antecedents and barbarian ancestry. While he, no doubt, enjoyed the highest advantages of instruction at that time to be obtained, and which were by no means contemptible, no evidence exists of his proficiency in any branch of science, or that he had improved the unusual opportunities placed at his disposal. His personal character was defiled by the practice of the most odious vices. He was cruel, tyrannical, treacherous, unprincipled, and corrupt. He obtained the passage of a law authorizing the nuptials of actresses with men of senatorial dignity, which had long been forbidden, in order to enable him to marry Theodora, a common prostitute, whose notorious licentiousness was the scandal of the capital, and whose shameless and incredible behavior at public banquets and upon the stage, had excited the wonder, and provoked the resentment of an age proverbially indulgent to the exercise of every kind of profligacy. It is certainly not to the possessor of such qualities that one is inclined to look for reform in legislation and morals, and the enforcement of regulations for the well-being of society. Yet from this unpromising source were derived both the preservation and arrangement of those principles of jurisprudence to whose excellence even the venerated expounders of the Common Law of England, irreconcilably and traditionally hostile to their full acceptance, have been compelled to yield reluctant tribute.
The Responsa Prudentum, or opinions of learned jurisconsults, given in answer to legal points submitted to them for determination, were an indirect and limited, but important source of Roman legislation. The custom of applying to persons distinguished by their legal acquirements for the solution of disputed questions, dated back to the days of the Republic. While the greatest respect was always entertained for these dicta, owing to the eminent ability of those who promulgated them, they were not invested with an official character until the reign of Augustus, and were long solely indebted for the credit which they acquired to the skill and knowledge exhibited in the treatment of the matters in controversy.
That sagacious monarch, quick to adopt and utilize any practice of former ages whose value had been confirmed by experience, provided it did not conflict with the objects of his own ambition; published a decree declaring such opinions to possess legal and official validity, when rendered by persons especially authorized by imperial appointment to give them, thus permanently establishing the prudentes and their responsa as a part of the juridical system of the Empire.
Their functions, however, were rather interpretative than creative, and were largely confined to the settlement of mooted points of law in particular cases; still, notwithstanding this restriction, the influence of their decisions as precedents was vast and decisive.
The assemblage and collation of the opinions of the most renowned of the ancient jurists, unquestionably preserved for posterity the most valuable results of their labors. Their works, of which more than two thousand were examined to obtain materials for the Digest, have nearly all perished. None of them remain in an unmutilated condition. A few are accessible through the medium of translations of doubtful authenticity. Some authors are known to us only by name, even the titles of their books have disappeared. It is true that the Edict of Justinian prohibiting the comparison of these authorities with their official abridgment which was declared to be the immutable law of the land or their citation before the tribunals, must have greatly contributed to their loss or destruction, as they would henceforth be of no legal value, and no sufficient incentive for their preservation would exist. Even an antiquary could have no use for an obsolete law-book, whose perusal was productive of no benefit either literary or financial, and whose study was practically forbidden by the government. Still, if, as has been popularly alleged, we are indebted to the discovery at Amalfi of a sole surviving copy of the laws of Justinian a statement whose accuracy may, however, not improperly be challenged, since numerous volumes of the Digest and the Code must have been distributed throughout the Empire, and have been in the hands of every magistrate, as without access to them he would be incapacitated from dispersing justice, or rendering a valid decision it may well be presumed that the rare and scattered treatises of the old commentators would have met with a similar fate, when the infinite number of copies issued by imperial authority for the guidance of the proconsuls, prætors, governors, and other officials charged with the administration of government, to say nothing of those obtained by lawyers and other individuals, did not avail to prevent their destruction.
The Institutes, the Digest, and the Code of Justinian were not originally written and promulgated in the order in which they now appear. The Code was issued first of all, and a second edition which is the one we have, the other having been lost was published after the completion of the Digest, in order to reconcile discrepancies existing between the two, and to provide for new laws which had been enacted since the first edition was ordered. The Institutes, which, being an elementary treatise intended for the use of students, would naturally be placed before the others, was composed after the Digest, but was published a few weeks before it, and became operative at the same time with the latter. The Institutes is, to all intents and purposes, a transcript of the work of Gaius, a few trifling alterations in the arrangement and discussion of the subjects involved having been introduced for the purpose of meeting the requirements exacted by subsequent legislation. The only material point in which it differs from the abridgment of Gaius, is that it includes a Title on crimes and their prosecution, a topic which is not touched upon by the latter author. The merits of the Institutes alone are sufficient to establish the reputation of the famous lawgiver.
The labors of the various jurists, twenty-seven in number, whose opinions, precepts, and arguments practically compose the Digest, embraced a period of seven centuries.
It has not escaped the notice of the commentator that the majority of those whose works were utilized lived in comparatively recent times, and that there are few citations which date back more than a century from the completion of the great undertaking of Justinian. The advantageous influence of that undertaking exerted, directly and indirectly, upon the general welfare of mankind; the inculcation and practice of morality; and the administration of justice, has been incalculable. Nor is the excellence, fame, and usefulness of the Digest confined to the enormous mass of legal information it contains, or the eminent character of the authorities placed under contribution by its compilers. Unlike the Code and the Novels, whose phraseology and style are more or less contaminated by barbarisms, the idiom in which it is written is of almost classic purity, and it has been said that if it alone of all Latin compositions survived, the entire language could be reconstructed by the study of its pages.
The Digest of Justinian remains, as it was at its completion, the most comprehensive, authoritative, and generally available source from which man, in his intercourse with his fellows, can ascertain those eternal principles of equity without the knowledge and application of which his happiness, and even his continued existence, would be impossible.
The Digest, with all its extraordinary merits, is, however, very far from being a perfect compendium of legal learning. This can scarcely be a matter of surprise, when the vast number of treatises to which it owed its origin, and the conflicting and often irreconcilable opinions of its authors are taken into consideration. Justinian, well aware of the discordant views on important points of law held by the prominent jurisconsults of his time, deemed it necessary to personally examine, and diligently scrutinize the work of his commissioners, as well as to prohibit, as previously mentioned, any criticism of, or commentary on, the product of their labors.
The arrangement of the Digest is defective, and lacks the method and convenience of reference which should characterize a work of this description. Notwithstanding the avowed intention of the Emperor that such imperfections would be avoided, it abounds in repetitions, contradictions, and irreconcilable statements often occurring within a few pages of one another which are the cause of infinite perplexity and annoyance. Despite its claim to condensation it is still far too diffuse, and, by means of intelligent revision, could be greatly abridged without detracting in any respect from its value, to the infinite advantage of those desirous of familiarizing themselves with its contents.
The Code consists of a series of imperial constitutions of the later emperors, none of them older than the reign of Hadrian. They are placed in chronological order, but the disposition of the topics is not judicious, nor well adapted to the purposes of either the student or the magistrate. The vast numbers of laws promulgated since the publication of the first edition, including fifty decisions rendered by Justinian in an attempt to reconcile the contradicting opinions of eminent legal authorities which are responsible for much of the obscurity and uncertainty attaching to certain parts of the Digest, imperatively demanded the issue of another edition of the Code, which would adequately provide for the changes introduced by the new legislation. It is well known that many fundamental changes in the constitutions were made by the commissioners, to whom was committed the revision of the original Code; full power having been conferred upon them as in the case of the Digest to do so, a privilege of which they did not hesitate freely to avail themselves. The text is frequently obscure, the style dry and involved, and the language indicative of the corrupt influence of a decadent age upon the literature of the Empire. The fact that the revised Code and the Digest were practically contemporaneous in completion and publication, and were drawn up under the same supervision, renders the inferiority of the former the more remarkable.
When he made his oft-repeated declaration that his decrees were unalterable, not susceptible of improvement, and destined to prevail for all time, Justinian failed to take into consideration that the law is a progressive science, and that, while its principles remain the same, their application must inevitably be modified, as occasion may demand, in order to adapt them to the ever-varying conditions and requirements of society. From the date of the conception of the Digest almost to the hour of his death, the Emperor was constantly employed in the revision and repeal of his own enactments. His last efforts to this end were embodied in the New Constitutions, or "Novels," as they are usually called, issued as explanatory of matters contained in the Code, which, in its turn, when any controverted point arose, took precedence of both the Institutes and Digest, as being the more recent authority: "Leges posteriores priores contrarias abrogant."
Two editions of the Novels, one in Latin, of one hundred and thirty-four, the other in Greek, of one hundred and fifty-nine constitutions, have come down to us. The former is styled Corpus Authenticum, and is generally considered as possessing the highest authority.
The Novels were not published as a whole until after the death of Justinian. By far the greater portion have reference to the private interests of individuals, and to three of them we are indebted for the law of intestate succession which, substantially unaltered, has been adopted by all the civilized nations of the world.
The Constitutions of Leo are largely taken up with rules prescribing the selection and ordination of candidates for ecclesiastical offices; privileges granted to captives and slaves; regulations to be observed by fishermen in casting their nets; and provisions of minor importance concerning Jews, concubinage, marriage, wills, coinage, and sumptuary legislation.
The arrangement of the Titles of the entire Civil Law is more or less largely arbitrary, unmethodical, and without adequate classification. It is a singular fact that the confusion and uncertainty which must inevitably result from this was not anticipated and provided for by the commissioners of Justinian, whose labors would have been greatly lessened, and the convenience of future generations materially promoted by the reconciliation of conflicting opinions, the avoidance of repetition, and the disposition of the rules of law, together with the observations to which they gave rise, in regular and systematic order.
Law was usually divided by the Romans into three kinds, Natural Law, Jus Naturale; the Law of Nations, Jus Gentium; and the Civil Law, Jus Civile. With a view to the close analogy existing between the first two of these many learned authors included both in the term Jus Gentium, which, being considered as embracing that body of rules prompted by the innate sense of morality and justice which should govern intercourse between our neighbors and ourselves, and requiring no express enactment to establish its validity, was also known as the Law of Nature.
In the case of the Romans, who had conquered the world, the Jus Gentium was subject to a different interpretation than that generally accorded to it, as the peoples to whom it applied no longer enjoyed that independence which would enable them to assert their rights, and, if necessary, maintain them by force of arms; but being, for the most part, reduced to the condition of either tributaries or serfs, were necessarily obliged to comply with such regulations as the appointed magistrate, in the exercise of his discretion, might see fit to impose upon them, regardless of their former nationality or privileges.
The Jus Civile, analogous to the Common Law of England, was stated by the authors of the Digest to be based exclusively upon the verbal opinions of jurisconsults: "Est proprium jus civile, quod sine scripto in solo prudentium interpretatione consistit."[l] The definition of Cicero is much more comprehensive, and included not only the Twelve Tables, but legislative enactments of every description, decrees of the Senate, judicial decisions, the precepts of learned jurists, imperial edicts, customs that from long usage had acquired legal force, and whatever was consistent with equity: "Quod in legibus senatus consultis, rebus judicatis, jurisperitorum auctoritate, edictis magistratuum, more, equitate consistat." The Jus Civile was not a term exclusively applicable to the rules of action adopted by the Romans; it was understood to indicate those which any nation might prescribe for the ordinary regulation and obedience of its constituents.
[l] Digest, I, II, 13.
Law was also either public or private; the first had reference to the mutual obligations of the State and those subject to its authority; the second concerned its relations of private individuals with one another. Public Law, therefore, dealt generally with the affairs of government, such as the maintenance and observance of the ceremonies of religion, which were usually political in their character, and the administration of criminal justice; private law with the enforcement of the rights upon which the acquisition and control of property principally depend; for example, those regulating contracts of every kind, the conveyance of land, testamentary disposition, and the settlement of the innumerable controversies, which, in the daily transaction of business, form so great a portion of the affairs of life.
The Jus Civile, which was only susceptible of a rigid interpretation, was also employed in contradistinction to the Jus Honorarium, or prætorian law, composed of magisterial edicts, in the formulation of which a large measure of discretion was conceded to the Prætor, who was authorized to mitigate the severity of existing statutes, and by reason of this extraordinary privilege, frequently exercised legislative as well as judicial functions. The Jus Honorarium in the course of centuries expanded to such dimensions as to be unavailable for reference, and an abridgment became necessary. This was effected during the reign of Hadrian by the existing Prætor, Salvius Julianus, to whose revision of the judicial acts of his predecessors was given the title of Perpetual Edict, which from that time was assigned a place as a part of the lex scripta of Roman jurisprudence.
Privilegia, as the etymology of the term implies, were exclusive laws having reference to certain persons or things. It was, however, generally used to indicate some unusual penalty. A privilegium was usually absolutely restricted to the individual who was the object of its provisions, and where it related to property, it also was applicable to the possessor or owner of the same. Legislation of this description was promulgated by the emperor, each rescript being circumscribed by the conditions of the particular case calling for its enactment; hence such laws could never be cited as precedents: "Privilegia non sunt trahenda ad exemplum."
Roman jurisprudence, to a certain extent, sanctioned retroactive legislation. The pernicious effects of this doctrine are thus ably set forth by a distinguished authority: "A retrospective law is a phrase which abridges in two words every possible notion of oppression, wickedness, and wrong, and this was the Common Law of England, according to the unanimous opinion of the judges."
While such legislation is expressly and unqualifiedly prohibited by Article I, Section 9, of the Constitution of the United States, judicial interpretation has so greatly restricted the application of the provision relating to ex post facto laws, as to seriously impair its efficacy, and to suggest that, in the future, legal acumen may suggest a ground for entirely annulling it.
The three legislative bodies of the Roman government were the Comitia Centuriata, or general assembly of the people, the Comitia Tributa, or assembly of the tribes, and the Senate. The legislative acts passed by these were respectively designated leges, plebiscita, and senatus-consulta. The measure to be adopted by the Comitia Centuriata was drawn up by a magistrate of senatorial rank, presumably a consul, revised by some eminent jurist, and then submitted to the voters of the Centuries, among whom originally no distinction of rank existed, as far as their suffrages were concerned. In the Comitia Tributa, which at its inception was exclusively composed of plebeians, a tribune introduced the proposed plebiscitum, which, as the patricians had no voice in either its submission or passage although it not infrequently curtailed their privileges, and menaced their influence affords a striking instance of class legislation. While, during the existence of the Republic, full authority to pass laws was vested in the entire body of the people, still, it was customary to obtain the sanction of the Senate, which in the earliest ages was indispensable. The process was sometimes reversed, for in important questions of diplomacy, or matters seriously affecting the public welfare, the law was proposed in, and passed by the Senate, and afterwards confirmed by the popular vote.
The legislative powers of these different bodies varied greatly at different epochs of Roman history. At one time, no act of the Comitia was valid without senatorial confirmation; at another, the tribune could arbitrarily veto a senatus-consultum a privilege subsequently exercised by the emperor as the successor of that official; and at first, under imperial rule, the Senate was presumed to enjoy full authority as the lawmaking power of which eventually scarcely the shadow remained, for the sovereign, absolute in this respect as in all others, communicated his will to the august but obsequious assemblage, and the populace by means of rescripts, edicts, mandates, and decrees.
Thus, at a period long antecedent to the reign of Justinian, the voice of the people, once dominant in the Comitia and the Senate, interdependent sources of legislation, had been silenced by the threatening and all-powerful influence of imperial authority. It is true that the shadow of its former greatness and dignity was still preserved in the deliberations of the Senate, but its acts were merely the expression of a prescribed and unimportant formality. After the third century, its approval was not deemed essential to render legislation valid; the sovereign rarely deigned to solicit the advice of the Conscript Fathers; and the decree which they were expected, and, in fact, ordered to confirm, already drawn up and ready for publication, was submitted to them by the Emperor in the form of the proposed law for their nominal consideration and actual passage. The functions of the Comitia were gradually assumed by the Senate, which, in turn, was compelled to relinquish its power to the sovereign, a power for centuries feared and respected throughout the world, and to whose exercise was largely attributable the glory and prestige attaching to the Roman name.
To no source, however, not even to the Jus Civile itself, is to be attributed a greater share in the formation and development of Roman jurisprudence than to the Jus Prætorium, or equity jurisdiction of the Prætor.
The Consuls succeeded the Kings as the highest judicial officers, whose duties, afterwards growing too onerous through the enormous increase of legal business due to the absorption of conquered territory, the extension of commerce, and the control of a turbulent and insolent populace, were eventually shared by inferior members of the magistracy, decemvirs, tribunes, and prætors, created from time to time as occasion demanded. Of these the prætors, during the latter part of the fourth and the middle of the third century before Christ, were recognized as judges with exclusive, original jurisdiction of legal questions, and general interpreters of the law.
Originally, there was but one of these magistrates, who was chosen with one of the Consuls by the Comitia Centuriata; afterwards, he was given a colleague, who heard and decided controversies arising between Roman citizens and foreigners. While they cast lots for the choice of jurisdiction, the former, styled Prætor Urbanus, was superior in rank to the latter, the Prætor Peregrinus.
Cicero informs us that the term "prætor" was originally a title of the Consuls, as military commanders, whose duties the magistrate subsequently designated by that name discharged in case of their absence or incapacity. After them, he was the most exalted dignitary of the state. He possessed the two extensive powers known as "imperium" and "jurisdictio," exercised together by no other Roman official except the Consuls. The former indicated his right to bring parties before his tribunal by summons, and to compel obedience to his decisions, or his edict; the latter had reference to his authority to render judgment and expound the law. While his principal functions were of a strictly judicial character, others were, from time to time, assigned to him, not the least important of which was the superintendence of the public games, with which the Urban Prætor was charged at a very early date. An office of such responsibility, and one which implied the possession of more than ordinary shrewdness, knowledge, discretion, and experience, was naturally only to be entrusted to a mature person of acknowledged capacity; hence the age requirement under the Republic was forty, under the Empire thirty years. The variety and complexity of the questions requiring examination by the courts, and which often demanded immediate consideration and settlement, necessitated an increase in the number of the functionaries of this branch of the Roman magistracy, and induced Sylla to order the appointment of eight Prætors, which figure Cæsar raised to sixteen. During the Empire, however, the original number was restored.
The Prætor first held his court in the Forum, and afterwards in the Basilica, not far away. Like all dignitaries of exalted rank, he was attired in a robe bordered with purple. His tribunal occupied the most honorable station in the former place of assemblage, and was semicircular in form, with a curule chair in the centre upon a slightly elevated platform, before which was erected a spear. This emblem of conquest and dominion, deemed the best evidence of the title to property, and set up in all courts, was the quiris of the Sabines, whence was derived the term Quirites, applied to Roman citizens in their civil capacity, as distinguished from the military. The inferior judicial officials were seated below the Prætor at his feet, and hence were designated Judices Pedanei; the lictors stood on either side. His exalted position did not require him always to render judgment in the tribunal; in ex parte matters he could decide and issue his order de plano; on the street, at his home, in the bath, or elsewhere; hence application for his sanction could be made to him at almost any time when no contested point was involved, as in the cases of the emancipation of children, or the manumission of slaves.
The Prætorian Tribunal was established for the purpose of affording relief in the administration of justice by determining questions which could not satisfactorily be disposed of under the ordinary rules of legal procedure; and which, if they remained unheard, or were decided strictly by law, would result in hardship and pecuniary loss to the parties concerned. In this respect, as well as in others, it presents a striking analogy to our modern courts possessing equity jurisdiction, instituted to supply the deficiencies of laws of too general a character. It was, indeed, the prototype of the English Court of Chancery, created for the same ends, and largely governed by the same principles and precepts. As is well known to every lawyer, a judge sitting as chancellor can, in case of emergency, hear and decide numerous matters without the formality of going upon the bench, when personal liberty or the preservation of property requires immediate action.
Other analogies will readily suggest themselves; the Prætor was originally, before being charged with the duties of the Consuls during their absence, or when they were occupied in the convocation and presidency of the Senate, merely the legal adviser of these chief magistrates of the Republic. The latter, like the Kings, were the fountain of justice, and to the judicial officer appointed to relieve them of a portion of their arduous duties, a certain discretionary power, in matters where the law as set forth in the Twelve Tables and subsequent enactments appeared to be deficient, was delegated, in order to afford equitable relief which could not otherwise be obtained.
In like manner, in England, the royal prerogative of grace, subject to strict and well-defined limitations, was placed in the hands of the chancellor, representing the sovereign, who originally sat with his judges in the court of the King's Bench, to "temper justice with mercy," which the latter, bound by the requirements and traditions of their office, were not at liberty to do. As in the case of the Prætor at Rome, the chancellor was expected to follow the well-established Common Law of the realm, where this was possible, and its rigid enforcement did not result in a conclusion not justified by conscience, in compliance with the ancient maxim: Æquitas sequitur legem. Like his prototype, he did not always see fit to adhere to this rule, and, in fact, both sometimes either quietly evaded, or boldly violated it.
The decree of the Prætor for specific performance, or one issued under some pressing exigency, exactly corresponded to that of the English chancellor, and coincides with our writ of mandamus; the preventive remedy of the Roman interdict was the exemplar of the injunction. The Prætor, if application were made to him, could order restitutio in integrum, or complete restitution of the complainant to his former status, where a contract was tainted with fraud; the chancellor, under similar circumstances, is invested with the same authority. The jurisdiction of both was especially directed to the protection of minors; the enforcement of the responsibilities of guardians; the prevention of impositions upon the weak and helpless. Both could compel answers to be given, under penalty, where lists of interrogatories were submitted; each could assign to a deputy a cause to be heard, order evidence to be taken, and the facts ascertained, that a decree might subsequently be rendered, a functionary, who, in the Prætorian Tribunal, was styled a "judex" or "arbiter," in the Court of Chancery, a "master."
The equitable jurisdiction of the Prætor, and the restraints which it imposed upon the formal application of the principles prescribed by the Twelve Tables, accepted customs, and other sources of the Civil Law, were regarded with great disfavor by the ancient Roman jurists, who could not be reconciled to improvements in the dispensation of justice, however salutary they might be, which conflicted with their preconceived ideas of legal proceedings, sanctioned and consecrated as the embodiment of human wisdom by the approval of their predecessors, and the continuous observance of many generations.
The greatest prejudice was also manifested by the early common lawyers against the Court of Chancery and its decrees. They deplored the latitude granted the chancellor, which, at times, enabled him to exercise his discretion in contravening established rules, and openly defying the law. They foresaw untold evils in the abandonment of principles that for so long had guided the official conduct of the renowned jurisconsults of the English bar. Regardless of the fact that all law is, or should be, founded on equity, the maxim, Lex aliquando sequitur æquitatem the converse of the more ancient one was to them an abomination. Their position on this point found apt expression in the saying of Selden: "Equity is a roguish thing, and is in law what the Spirit is in Religion, what everyone pleases to make it." Even to this day, when courts of law and equity are almost everywhere practically consolidated, this feeling is by no means extinct among many members of the legal profession.
A considerable portion of the prejudice attaching to Roman law in England, has very properly been attributed to the machinations of the priesthood. "Perverted by the Canonists into an instrument of ecclesiastical ambition and rapacity, wielded in every part of Europe by the clergy, as a means of accomplishing their gigantic schemes of usurpation, it is not surprising that real patriots should oppose doctrines which were put forward ostentatiously by the most determined and implacable foes of English freedom."
There were other magistrates than the Prætor, such as tribunes, quæstors, censors, ædiles, triumvirs, and duumvirs, inferior in rank, and invested with more or less limited jurisdiction, some of whom could be classed under the modern appellation of commissioners. In the course of time the office of Prætor was curtailed of much of its importance by the transfer of many of its functions to the courts of the Urban and Prætorian Prefects.
As the duties of the Consuls frequently required them to be absent from Rome, the Prætor, under such circumstances, acted as their representative, and was invested with supreme executive as well as judicial authority. The difference between the two offices was, in fact, merely nominal. The Prætor, like the Consul, could exercise the right of military command, as well as discharge the functions of civil government. But his principal duties were those connected with his judicial power. His was the supreme tribunal for the administration of justice, whence legal principles emanated, and where laws were expounded, and often promulgated. In the Edict which he always published at the beginning of his term of office, he declared that he would afford relief to the severity imposed upon litigants by a strict construction of the civil law, either by employing what was lacking, or by correcting what was onerous, so far as might be advantageous to the public welfare: "Adjuvandi vel supplendi vel corrigendi juris civilis propter publicam utilitatem." In the formulation of the rules for his official conduct during the year for which he was elected, he was, in this instance as elsewhere, guided largely by his own discretion. He could adopt the regulations established by his predecessor, change, or practically abrogate them, if he chose to do so. As a matter of fact, however, he generally confirmed at least a portion of them, adding such others as he considered either necessary or advisable. Thus he possessed a qualified legislative authority, whose effect upon the jurisprudence of Rome, both with respect to its formation and construction, and especially conspicuous in its beneficent influence, exceeded anything accomplished by the ordinary lawmaking powers. The independence of the Prætor was indeed so great, that, until less than a century before the Christian era, aside from custom, there was no legal way by which he could be compelled to observe the rules that he himself had prescribed, and which, when actuated by ambition or prejudice, he would naturally be tempted to disregard. The defect was eventually remedied by the enactment of the Lex Cornelia de Edictis Perpetuiis, which forbade him to violate the terms of his Edict.
The right to issue edicts was, by no means, the exclusive privilege of the Prætor, although his authority in this respect exceeded that of other judicial officers, for, as Gaius informs us, it was vested in all Roman magistrates: "Jus autem edicendi habent magistratus populi Romani."
 Institutes, I, VI.
In the alteration of the ancient law, and its adaptation to the new conditions of Roman society which had been evolved in the course of centuries, the influence of the Prætorian Tribunal was gradual, but none the less effective. The proverbial attachment of the people to established custom, or the practice of their ancestors, was such as to discourage any sudden or radical abolition of existing laws, even though obsolete, as many of the provisions of the Twelve Tables, together with others embodied in subsequent legislation, actually were. The difficulty was increased by the incessant conflict between the patricians and the plebeians; the former unwilling to renounce any of their time-honored privileges, and the latter equally determined to secure for themselves a greater degree of freedom, and a decisive voice in the affairs of state. Great tact was therefore requisite, and, as the Prætor was always a patrician, he was necessarily often suspected as being constantly liable to temptation to unduly favor his own order. The fact that such important changes in jurisprudence were accomplished without serious disturbance at any time, speaks well not only for the talents with which the Prætorian magistracy was administered, but also indicates the laudable self-control of which the masses were susceptible, even when their most vital interests were involved.
The moral element was, of course, the most important consideration in the establishment of the equitable jurisdiction of the Prætor. He was expected, above all things, constantly to bear in mind the principles of justice, and to apply them without regard to the observance of the strict letter of the law "In summa æquitatem ante oculos habere debet judex." His innovations did not, however, go to the length of actually annulling a law which, either by special enactment, or through acknowledged custom, had been accepted as such; his authority rather consisted in a liberal interpretation and application of such rules as he had formulated as the basis of his decisions when he assumed the duties of his office, and which he was expected to adhere to, and, by means of them, modify and correct the inconveniences entailed by preexisting legislation. While he could not expressly abrogate a statute, he had the power to suspend its operation in matters which came before him for determination when this was required for the dispensation of equity, defined by Aristotle to be: "The correction of the law where it is defective by reason of the universality of its expression."
Notwithstanding the great latitude allowed him in rendering judgment, the Prætor was subject to certain restrictions; among others that of not being permitted to lay down rules or promulgate decisions either irreconcilable with the terms of his own Edict, or in absolute contravention of the civil law by which his official conduct was, in general, presumed to be regulated. The fact that the duties of this important office were almost uniformly discharged by men who were not lawyers, is one of the striking anomalies of Roman jurisprudence. Such technical legal knowledge as was necessary was supplied by the Assessors, otherwise known as decemviri litibus judicandis, ten in number, and taken equally from the senatorial and equestrian orders, who, although they were sometimes designated judges, acted only in an advisory capacity.
While the Prætor was empowered to hear and determine questions of both law and fact, the latter duty was generally performed by a judex or judge, a term which did not necessarily imply the possession of legal attainments. When the judex made his report, the Prætor rendered judgment in the case. When appointed for that purpose the judex could also interpret the law, but, under no circumstances, was he considered as the deputy of the Prætor, who only designated him to decide some special case, after which his authority was at an end. The parties litigant were expected to agree upon the selection of the judge, and when this had been done, the Prætor, on the motion of the plaintiff, appointed him. No matter how small the sum involved was, the appointment was not made without their consent.
Under the Roman practice there were three kinds of judges, who were designated respectively, Judex, Arbiter, and Recuperatores, the latter term never being used in the singular. The first of these had jurisdiction of actions stricti juris, or such as were instituted under the civil law to the rules of which he was obliged absolutely to adhere; the second heard cases bonæ fidei, that is those styled arbitrariæ, in which the sum to be recovered was undetermined, and the court was invested with full authority to fix it; the third, as previously stated, were jurymen appointed to assess damages in civil proceedings, when suit had not been brought to recover any certain article or specified sum of money, and in actions of tort; this, however, they only had a right to do when the value of the property in dispute was less than a thousand asses. Their number is not positively known, and, indeed, varied, ordinarily consisting of three or five, sometimes of many more. They first were appointed in cases where a foreigner was a party, but this rule was afterwards extended to include disputes existing between the Roman government and those of other states; their acts being, in such instances, invested with more or less of a diplomatic character.
While, properly speaking, there could only be a single judex, there might be several arbitri, as well as recuperatores. It was not essential that either of these should be Roman citizens, or that the recuperatores should be selected from the panel of judices posted up in the Forum, as bystanders could be called upon to serve, as in the case of modern talesmen. This fact, as well as the statement by Gaius that, in the case of the non-appearance of the defendant, judgment was at once rendered against him by the recuperatores for the penal sum mentioned in the bond: "Ut qui non steterit, is protinus a recuperatoribus in summan uadimonii condemnatur;" would seem to indicate that they were principally considered available in instances where the rapid disposal of a controversy was deemed expedient. The functions of these officials were, to all intents and purposes, identical, the only difference between them was the number employed. This was the ordinary course of Roman civil procedure from the compilation of the Twelve Tables to the reign of Diocletian.
 Gaius, Institutes, IV, 185.
The Roman system of government invested all important dignitaries Consuls, Proconsuls, Governors of Provinces, Prætorian Prefects, Quæstors, and Curule Ædiles whom we would naturally class as exclusively executive officers, with judicial authority. Although after the institution of the Empire, the Consulate became a purely honorary office, eventually consolidated with that of the sovereign as supreme magistrate, the Consuls occasionally performed the duties of expounders of the law, so late as the fourth century, and to the last, the Prætor was considered a deputy, or supplementary Consul. To the arbitrary and uncertain character of the Consular decisions was chiefly to be attributed the great and beneficial change caused by the compilation of the Twelve Tables.
A love for grandiloquent titles, unknown to the ancient Romans, and an infallible symptom of national decadence, characterized the debased population of the Eastern Empire. The pompous and often absurd designations and attributes assumed by Justinian, and prefixed to the Digest, reveal the extent to which imperial vanity and exaggeration could go. The nobility, which included the magistrates, were divided into five grades or classes, illustres, spectabiles, clarissimi, perfectissimi, egregii, according to their rank and the official positions which they occupied.
Some confusion may naturally arise when the respective functions of the Judices under the Formulary System, and those of the later Judices Pedanei are considered. The duty of the former was simply to ascertain the facts at issue and report accordingly; the latter, however, being ordinarily trained and experienced jurists, and often acting as Assessors or advisers of the Prætor, were authorized to decide both the law and facts, and they, upon whose decisions he was almost wholly dependent for the information to enable him to render his decrees, had obviously far greater influence and power.
The imperial magistracy also included the duumviri, two in number as indicated by their name, municipal authorities of all cities except Rome and Constantinople, whose office was elective; and the defensor civitatis, appointed by the Prefect of the district as the representative of the poorer classes against the oppressive encroachments of powerful and unscrupulous persons. These functionaries, when acting in a judicial capacity, decided cases in which not more than three hundred solidi, about fifteen hundred dollars, were involved. The duumviri corresponded to the Consuls, from whom their office was derived, but did not possess the authority of the latter.
The original Romans were warriors pure and simple, whose emblem, the spear, was never lost sight of. It was the most important and significant token of their military, economic, and social life. When the commanding officer of an army wished to manifest his devotion to his soldiers he stood upon a spear while making the prescribed declaration to that effect. Conquered enemies were marched under it to denote their subjection. The shaft of such a weapon was bestowed as a reward of military merit. A spear, the symbol of legal authority and possession, was erected at all auctions of both public and private property, as well as when the Censor sold the right to collect taxes to farmers of the revenue. A spear-head, which had transfixed a gladiator in the ampitheatre, was employed instead of a comb, to part the hair of a prospective bride. As the emblem of property and quiritarian right, representative of the principle of force upon which the Roman polity depended for its existence and continuance, its appearance perpetually called to mind the valor and constancy which enabled those who wielded it to vanquish their enemies, and had prompted them to include among their possessions even their children, who were practically slaves, and their wives, who themselves had originally been obtained by violence. It is therefore only natural that what was regarded as the symbol of all power should eventually occupy a prominent place in the judicial tribunals.
Much of the severity manifested in early Roman legislation, both as regards its formulation and its enforcement, is attributable to the ruling impulse of the nation, the worship of force. Despite the nominal supremacy of Jupiter, Mars and Hercules were in fact the dominant spirits of its Pantheon. The arts of peace, which bring in their train the virtues of sympathy and benevolence, and the amenities of social intercourse, were always subordinated to the battle, the triumph, and the lust of universal empire. In the words of a famous writer: "Les hommes extrêmement heureux et les hommes extrêmement malheureux sont également portés à la dureté; témoin les moines et les conquérants. Il n'y a que la médiocrité et le mélange de la bonne et de la mauvaise fortune qui donnent de la douceur et de la pitié." 
The civil and military history of a nation is thus reflected in its laws. The two are inseparably connected, and each is the necessary complement to the other. The circumstances attending the origin and growth of a people must be ascertained in order to grasp intelligently the motives which prompted its legislation; the character of its ordinances must be thoroughly understood to enable the chronicler to effectively depict and explain the consequences of the acts of the lawmaking power. Hence it has been most pertinently observed that a jurist should be acquainted with history, and an historian versed in jurisprudence: "Tout historien devrait être jurisconsulte, tout jurisconsulte devrait être historien." No more faithful or suggestive picture of the rise, development, and destruction of a race can be obtained, than by the philosophical study of the laws by which it was governed, as well as of the political considerations that caused their enactment, and to no state is this remark more applicable than to Rome.
 Montesquieu, Works, De l'Esprit des Lois, page 231.
 Ortolan, Histoire de la Legislation Romaine, I, XVII.
Roman jurisprudence was exclusively devised for, and applicable to those enjoying Roman citizenship. He only, was a citizen in whom were vested the rights of connubium and commercium; that is, one who could marry, and enter into a valid contract, an essential requisite for the prosecution of any kind of business. The enjoyment of the jus civitatis implied not only the exercise of many privileges, but the assumption of responsibilities which could not be evaded. The civis was registered in the census, and was subject to taxation; he could be enrolled in the army, which was closed to slaves, freedmen, and foreigners; he could take part in the proceedings of the various popular assemblies, and was eligible to the highest official dignities; his person was sacred, in early times it was unlawful to put him to death, and in subsequent ages, even though by conviction for crime he forfeited his citizenship, he was permitted to avoid the penalty by going into voluntary exile; it was his duty to be present on important occasions, at sacrifices and the celebration of other religious ceremonies, and at the public games; he participated in all civil benefits. Liberty was his birthright, and despotic control of his household his peculiar privilege; upon him alone was conferred testamentary capacity and the power to take under a will, or succeed to an estate; upon him were imposed the charges of guardianship, responsibility for whose assumption and exercise could not be renounced, and whose faithful performance was insured by the most exacting safeguards. The highest grade of citizenship was that to which the jus suffragii et honorum, the right to vote in the Comitia, and to administer the office of magistrate, attached. The possession of political rights, which we are accustomed to associate exclusively with the term, was not, however, absolutely necessary, as many ingenui were not entitled to it; but the enjoyment of civil privileges was indispensable to enable a man to contract a marriage recognized as legal, or engage in transactions which necessitated the acquisition and alienation of property, including the succession to intestates.
Residence at Rome was attended with greater prestige and the enjoyment of superior advantages than were accorded to dwellers in municipal towns.
The original division of the people was into two classes, the Cives, and the Peregrini. To these were subsequently added that of the Latini, who could buy and sell merchandise, but to whom matrimonial connection with the Cives was denied. Peregrini, or strangers, were not necessarily aliens, but any persons who could claim no rights either private or political; even plebeians were placed in this category. They had, at first, no standing in the tribunals, and, being to all intents and purposes outlaws, could not obtain legal redress unless they enjoyed the patronage of some influential citizen. It was mainly for their benefit that the office of Prætor Peregrinus was created. The severity of these rules was, from time to time, relaxed; with the institution of the Empire the honorable appellation of civis was deprived of much of its meaning and importance; the privilege was bestowed by the Emperors indiscriminately at mere solicitation; and, as the climax of this violation of ancient usage and tradition, Caracalla, by an edict, constituted every freeman in his dominions a Roman citizen.
The Jus Civitatis and the Jus Quiritium were not synonymous, the latter, from which the Jus Civitatis obtained nearly all that rendered it desirable or advantageous, namely, the private rights which its enjoyment conferred, being embraced in it.
The lex originis, or municipal law of man's birthplace, always took precedence of the rules affecting his Roman citizenship, in case any conflict arose between the two. The munera publica, or civil obligations, which the former entailed, could not be declined or avoided by him whom, by the accident of nativity, fortune had rendered liable to their performance. Among these requirements were the holding of certain offices and the gratuitous discharge of public duties, which frequently demanded great personal sacrifices, involving loss of time, and a considerable expenditure of money.
The extraordinary power wielded by municipalities over their citizens, and which had been so long and despotically exercised, vanished with the overthrow of the Western Empire by the barbarians.
Attention has been called to the remarkable fact that the Roman is the only system of jurisprudence mentioned in history which was established and developed under a Republican form of government; as well as to its difference from others in that its authority was not, for many centuries, exerted for the propagation of any special form of superstition. Religious toleration was a cardinal principle of the Roman polity. The statue of every divinity, the ritual of every sect, found a place in the Roman Pantheon and its services; admission was even given to the altar of the "Unknown God." In common with other Italian towns, Rome possessed a tutelary deity whose name, known only to the initiated, was secret, and was impiety to utter; a custom which may have been derived from the Hebrews, who observed it with reference to one of the synonyms or attributes of Jehovah. And yet this government, in common with those of all primitive races which depend at first upon credulity and fear for the enforcement of their decrees, was absolutely controlled by sacerdotal power. The Roman cult was, as previously stated, always political, and the College of Pontiffs was far from being an association of a purely sacred character. The primary functions of the Pontifex Maximus and the augur were civil, not religious. The priests not only framed and promulgated laws, but were the custodians of the official records in which they were preserved; saw to their execution; and guarded most jealously, as their special prerogative, the knowledge of the formalities requisite for their enforcement. This association of secular and religious authority was reflected in a not less marked degree in the Roman households, or familiæ, of which the State was but an aggregation, and where the head was the celebrant of the sacra privata, as well as the ruler in mundane affairs of those subject to his arbitrary, domestic jurisdiction. The inevitable result of this confusion of religious precept and temporal law was that every violation of the established ordinances was held to be more or less of a sacrilegious character, and a sin, invoking upon the head of the offender not only the anathemas of the priesthood, but the general execration of all pious citizens, and rendering him and his family outlaws, a condition which was found to be so effective in the maintenance of papal authority, that it was frequently created in mediæval times by the imposition of an interdict upon recalcitrant or offending communities.
The duty of the presiding magistrate was primarily, but not exclusively, the construction and application of the law; and his ruling was termed jus. The facts were passed upon, and reported by, the judex, or recuperatores, who, appointed by the Prætor, with the consent of the parties, had little or nothing to do with the legal aspects of the case, but heard the evidence, and made a report, which was styled judicium. The litis contestatio, or joinder of issue, was held to take solace at the time when the claims of both parties were submitted to the Prætor for examination. If a compromise could not be effected, the judge was selected from a list of persons whose names were enrolled upon the Prætor's album judicium, their eligibility being dependent upon pecuniary qualifications prescribed by Jaw. The appointee was usually a senator, but this was not indispensable.
This separation of matters of law and fact naturally suggests the impanelling and functions of the English jury. The number, and the effect of the votes of both do not coincide, but this is of little consequence when their original selection, duties, and proceedings are considered. The source from whence our jury system is taken has long been a subject of controversy. The weight of authority seems to point to the Frankish inquest as its prototype. The Franks, however, were an offshot of a Teutonic tribe domiciled on the Rhine; and the Schöffen, or facti judices of the Germans, decided questions of fact in the same manner as the Recuperatores; and, like the original English jurymen, based their verdict largely upon matters within their own knowledge. Hence the jury was called testes, and what would now be a ground for exclusion, was, in the beginning, an indispensable requisite. The Compurgatores, whose number varied from five to twelve, were also of German origin, and a judicial body, the eligibility of whose members and whose decisions were founded upon personal acquaintance with the matters at issue. It may also be remarked here that the primary meaning of the term arbiter was, also, "a witness." This general similarity would seem to be more than a mere coincidence, and, bearing in mind the boundless influence of the Roman Empire upon the barbarous, as well as the civilized nations with which it was brought in contact, or which, at some time, were subject to its domination, in the absence of positive evidence, it is not unreasonable to infer that the origin of the modern jury may be attributed to the judicial polity of that imperial race whose genius has left such enduring traces upon others of our legal institutions.
No nation can construct for itself a rational and efficient system of criminal jurisprudence, until it abandons the primitive conception that a violation of the rights of man, founded upon, and confirmed by ancient custom, or forbidden by express enactment, is an offense against the deity. The persistence of this idea among the Romans even after the second edition of Justinian's Code, had a conspicuous effect upon their penal laws, which were far less complete and judicious than their wise and admirable scheme of civil legislation.
This was also the case in England during the age preceding the Norman conquest when reparation for what were considered private wrongs, was made either according to a regular schedule of penalties, or by the application of the Lex Talionis. The punitive character of the legislation of uncivilized nations bears no resemblance to what we designate criminal law. Its object is not the same. Its application is private and personal, and has no connection with the supreme authority of the State. None of the technicalities which abound in modern judicial systems exist to render its interpretation ambiguous, its enforcement difficult. Its precepts are rather advisory than mandatory, the expression of customs long and unhesitatingly observed, until all classes came to regard them as rules which must not be disobeyed.
The postulate that no Roman citizen could, according to the ancient law, legally suffer the penalty of death, was evaded by the ingenuous expedient of reducing him to servitude prior to his execution by declaring him to be servus pnæ, the slave of punishment. Conviction of a serious crime also involved the forfeiture of citizenship, a condition equivalent to outlawry.
At the era when the Twelve Tables were the supreme law of the land, only four actions, strictly speaking, were recognized in legal procedure. The equitable jurisdiction of the Prætor not being, as yet, established, all suits were perpetual, that is the right to bring them was not barred by prescription, no matter how long a period had elapsed since its accrual. When, however, honorary or prætorian actions found their way into Roman jurisprudence, they were subject to limitation of time, and were only available during the year in which the Prætor held office; hence they were designated temporales, or temporary. An actio directa was one instituted for the recovery of property, or to compel the observance of a contract by the defendant, who, in case he had sustained any damage, or had been subjected to expense by reason of the transaction, had a right to bring the actio contraria, or counter-action, for the purpose of indemnification. Actions were either real, personal, or mixed. A real action (in rem), was one in which the right to proceed arose from the property or subject itself; a personal action (in personam) was based on the breach of an obligation contracted by another, and for which he and his heirs and successors were liable. A mixed action, to a certain extent, possessed the character of both the others. Actiones stricti juris were those in which the court was obliged to adhere to the law as laid down by the authorities, and had no latitude of interpretation whatever, as contrasted with actiones bonæ fidei, in which the discretionary power of the magistrate in rendering a decision consonant with the principles of equity could be properly exercised. Hence it appears that real and personal actions at civil law differ from those of common law practice, as, under the latter, suit could only be brought for the specific recovery of lands, or rights arising therefrom, and hence was applicable to real property alone; a limitation not recognized by Roman jurists. Actiones in personam, arising either from contracts or torts, closely resemble the personal actions of English jurisprudence. The difference between actions in rem and those in personam was entirely dependent upon the character of the rights which those two forms of legal procedure were respectively designed to protect. The Roman actio in rem, which lay where the title to any kind of property whatever was involved, was obviously much more extended in its application than the corresponding action of the common law, which was restricted to the recovery of land, or some interest in it, claimed under a free tenure as an indispensable condition of its availability. Despite those distinctions, which are more apparent than real, a general analogy exists between the two methods, and no reasonable doubt can exist that, in this as in so many other instances, the English is indebted to the Roman law for formulas whose origin is of such high antiquity that it cannot definitely be established.
The term in rem indicates its general application, so far as the property or right involved is concerned; the liability of the defendant either as claimant, possessor, or as responsible for damage, not being considered material, but of secondary importance. Hence an action of this kind being unlimited so far as persons were concerned, and directly relating to what it was designated to recover, could be brought against the party in possession. The principal distinction between real and personal actions stated concisely, was that the former were based upon ownership, or what was called by the Romans jus in re; the latter was available when anyone was entitled to something arising from a contract or obligation, a right designated jus ad rem; or, in the words of Bacon: "the one is an estate, which is jus in re, the other a demand, which is jus ad rem."  All prætorian actions, no matter what their nature, whether personal or real, could be heard and decided by an arbiter, who, invested with somewhat greater authority than the judex, was defined as follows: "Arbiter est qui totius rei arbitrium habet et potestatem."
Fleta adopts the Roman division of actions verbatim, without allusion to its derivation: "Placitarum alius personale, aliud reale, aliud mixtum."
Under the practice of the later period of the Empire, actions of every description were no longer perpetual, but the right to bring them was barred after the lapse of thirty years. As a rule, a criminal accusation could not be filed where twenty years from the date of the offence had expired. During the reign of Justinian, the difference between proceedings in jure and in judicio was abolished, and all points of law and fact were heard and determined by one magistrate, who was also invested with the authority necessary to carry his decrees into execution; that is, the imperium mixtum in civil actions, and the imperium merum in those involving punishment for crime.
 Bacon, Works, Reading on the Statutes of Uses, Vol. IV, Page 161.
 Commentarius Juris Anglicani, I, 1.
The Roman Empire, from the reign of Constantine, was, for both administrative and judicial purposes, divided into four Prætorian Prefectures, which were in turn, subdivided into twelve dioceses, or districts, each governed by a deputy. The tribunals of those officials constituted supreme courts of appeal from the decisions of judges of inferior jurisdiction. Governors of provinces came next in the exercise of magisterial authority, and after them, the duumviri or municipal authorities, the judices pedanei, and the popular defenders, or defensores civitatum. The Prætorian Prefects of the two great capitals were the successors of the Urban Prætor. To the Emperor and his Council were occasionally referred questions which the exalted rank or powerful influence of the parties interested enabled them to remove from the consideration of the ordinary tribunals.
The jurisdiction of the Urban Prefect extended a hundred miles from Rome in every direction. To it the Latins were not subject, but enjoyed the privilege of being governed by their own laws. They were also, under certain circumstances, entitled to the freedom of the capital, and permitted to take part in important religious ceremonies. Their right of citizenship was restricted, but it could be claimed when they had either occupied the position of magistrate, or had left an heir. Italians, outside of Latium, were even less favored than those who enjoyed Latinitas. Justinian was the first to abolish the distinction existing between Italy and the remaining provinces, so far as the application of the civil law was concerned.
Under the improved system of practice introduced by this Emperor, the plaintiff first filed a libellus conventionis, or notice of suit, a concise statement of the cause of action, asking the magistrate to notify the defendant, and compel his appearance. Security was required from the plaintiff, or he was obliged to swear that he would have the action heard in sixty days, or reimburse the defendant double the amount of the expenses he had incurred, as well as prosecute the case to final judgment, and, if defeated, pay all costs. If the court found upon examination that the claim was not good in law, he dismissed the case, a proceeding resembling the sustaining of a demurrer, except that it effectually disposed of the suit. If, on the other hand, he considered the complaint to be well founded, he issued a summons to the defendant, who filed his answer, or libellus contradictionis, and was at the same time compelled to furnish security for damages and costs.
A plea to the jurisdiction could then be entered, and if it was found against the defendant, the oath of calumny was taken, and the case proceeded in due course. Institution of legal proceedings by libellus was almost identical with and what was known as cognitio extraordinaria, with which all magistrates were now invested, and the only system authorized by Justinian. The effect of litis contestatio was that the parties litigant bound themselves under what was practically a stipulation to acquiesce in the decision of the judge, to whom the matter in controversy was referred; and, in early times, indicated the beginning of the proceedings in judicio; afterwards, however, when the magistrate determined questions of both law and fact, it dated from the day when the preparations for trial had been completed. The ancient law of Rome required each party to file the pleadings and conduct his own case. This was subsequently changed by permitting the appointment of a procurator, or agent, who was a mere attorney-infact, and, standing in the place of his constituent, became individually responsible for the result. Under the old common law of England, the same rule prevailed, and no one could empower another to appear for him without having first obtained permission of the court to do so. When a magistrate, through ignorance or design, rendered an illegal decision, he was held strictly accountable for any loss or expense resulting from his want of knowledge, or duplicity. If guilty of fraud, he incurred liability for the entire amount involved in litigation. The law of England and America is more indulgent, and an erroneous ruling by the judge cannot ordinarily be made the subject of judicial inquiry, either civil or criminal, as his acts are presumed to have been dictated by motives worthy of the honor and dignity of his exalted office.
The profound influence of Roman law upon that of England although never expressly admitted by the ancient jurists who appropriated many of its doctrines and precepts without alteration, cannot consistently be denied. Their treatises, constituting the very foundation of English jurisprudence, contain innumerable technical expressions and forms of procedure taken bodily, beyond all question, from the compilation of Justinian. Among these is the reference to the verbal contract familiar to the Romans as stipulatio, unknown to the common law, and from which the Action of Covenant is said to have been derived. The Roman element is remarkably conspicuous in the work of Fleta.
The Conquest of England by the Normans, and the resultant introduction of the canon law by ecclesiastics, the only class of persons at all conversant with letters in that age, had more to do with the study of the Jus Civile, and the adoption of its principles, than any other cause. Again, many of the chief dignitaries of the Church were either foreigners, special emissaries of the Holy See, or priests educated in Italy, and thoroughly imbued with the doctrines of the Civil Law and the Roman polity, upon which the entire fabric of their religion and the rules by which it was governed were based. The vast and irresponsible papal authority, almost faultless in the details of its organization and the adroitness with which its mandates are executed, is the direct heritage of the imperial system of Rome, and Italian influence is especially noticeable in the survival of these ancient forms in the practice of the Ecclesiastical Courts and those of the two Universities. The greater portion of the Common Law, however, dates back to the Saxon occupation, and the Teutonic love of liberty, inherited from remote antiquity, caused the British mind to revolt at the idea of such subjection to despotic will, as the Roman system, which practically concentrated all legislative, executive, and judicial functions in a single individual, enjoined as compulsory; notwithstanding the dictum of Glanvil, "The pleasure of the king is law, and has the force of law; "Hoc ipsum Lex fit quod Principi placet & Legis habet vigorem." It was not until the fourteenth century, that the Civil Law, which for the period of nearly three hundred years had, chiefly through the agency of ecclesiastics appealing to the most powerful instincts and prejudices of humanity, been largely instrumental in the formation and development of English jurisprudence, began no longer to arouse the interest of jurists who had hitherto devoted themselves to its study. The immediate cause of this was not only the hatred entertained by the English for the exercise of arbitrary power by secular rulers, but the well-founded apprehension of papal supremacy, exemplified in many instances by the arrogant usurpation of civil authority by foreign prelates, acting under the direction of the See of Rome. The effects produced upon the laws of England by this influence, notwithstanding its unpopularity, never were effaced. In the law of contracts, especially that portion of it requiring a consideration to establish the validity of an agreement and render it legally enforceable; in the rules governing intestate succession; in the forms and titles of legislation; in the pleadings, examination of witnesses, and general order of judicial procedure; in the close resemblance of the interdict and injunction which suggests identity of origin; in the adoption, and constant use of maxims borrowed without alteration and without credit from the Institutes and the Digest; in the easement, corresponding to the servitude, of which it is the derivative and counterpart, and the means by which the right may be exercised, maintained, and lost; in the doctrine of natural accessions; in the authority of the chief law officer of the Crown to file informations, which was one of the duties of the Imperial Procurator representing the Emperor; in the innumerable other analogies existing between the Roman and English systems of jurisprudence, which, though often indefinite, are none the less convincing when the principles of the Civil and the Common law are subjected to comparison and contrast.
 Glanvil, Tractatus de Legibus & Consuetudinibus Angliæ, Prologus, 3.
Numerous orders prohibiting the study and application of the rules of the civil law were issued at different epochs by the English authorities. Stephen, influenced as much by personal resentment against the Pope for his interference in the affairs of his kingdom as by the representations of his legal advisors, forbade the books of Roman law to be read. Henry III did not allow them to be taught in London, but confined the restriction to the capital. During the reign of Richard II, the recalcitrant nobles promulgated a resolution solemnly adopted, stating that: "The realm of England had never been until this hour, nor, by consent of our Lord the King and the Lords of Parliament, shall it ever be ruled or governed by the civil law." So great was the prejudice entertained by the English lawyers against Roman jurisprudence, that whenever a copy of the compilation of Justinian came into their hands, they immediately destroyed it. Despite these menacing prohibitions, and the bulls of several popes interdicting it, the study of the civil law was still pursued with avidity, especially by churchmen. Very properly regarded as the fundamental basis of the canon law, it was deemed essential for the magistrates, who were almost invariably priests, to be thoroughly familiar with both systems; versed "in utroque jure canonico scilicet et civili."
Ecclesiastical influence succeeded in establishing and preserving for centuries the Roman forms of procedure in the various tribunals, presided over by members of the clergy, not the least important of which was the Court of Chancery.
It was stated by Selden that the reign of Edward I should be accepted as marking the epoch from which the constructive legislation of England which country had hitherto been almost exclusively dependent upon other nations for its laws dated its origin, and the formulation of a juridical system peculiarly its own began. The labors of Glanvil and Bracton, with their wholesale appropriation of the maxims and practice of the great Roman jurists, had already been accomplished. The former of these two authors who may with propriety be designated the Fathers of English jurisprudence, however, borrowed far less from Roman sources than his more learned and illustrious successor, of whom it was said: "There is scarcely a principle of law incorporated in the treatise of Bracton, that has survived to our times, which may not be traced to the Roman law, Bracton's direct references evidently do not comprise the whole of what he adopted immediately from the "Corpus Juris." It has been estimated that at least one third of his work is taken from it. Not only Bracton, but other ancient legal writers, among whom, is Plowden, refer to many of the axioms and rules, which, constituting part of its common law, they quote as having originated in England, when in fact, they have been copied from the Digest, a misrepresentation hardly attributable to ignorance.
The arrangement and titles of some of the topics discussed by Bracton, Fleta, and Blackstone exactly coincide with those adopted by the commissioners of Justinian; and the phraseology employed by the first two, is, in numerous instances, identical with that of the Roman jurisconsults, whose observations appear substantially as transcripts in the treatises of these English commentators.
As there can be no doubt that the laws of Italy were administered in the British Isles during the Roman occupation, it is strange that their influence seems absolutely to have disappeared with the cessation of imperial supremacy. The impression, if any, left by those laws upon the jurisprudence of England, at that time seems to have been negligible, and their re-introduction in another form, under the auspices of the clergy, was, as above stated, one of the most important incidents of the Norman Conquest. Scarcely a vestige of the prior existence of the laws of Rome appears in the legal history of the preceding seven centuries.
The first Anglo-Saxon Code with its Teutonic legislation, which formed one of the original sources of the Common Law of England, was not promulgated until about the beginning of the seventh century. The Salic law, dating back to the fifth century, and consisting principally of a schedule of fines to be imposed by way of compensation for personal physical injuries, while to some extent instrumental in the formation of English jurisprudence, is of much less importance than the laws introduced by the Saxons. In these primitive compilations, as in the Twelve Tables, if the fine was not forthcoming, the relatives of the deceased were at liberty to exercise the right of blood-revenge. The Lex Talionis was not, however, so specifically set forth in those codes, as it was in the ancient Roman one. The influence of custom, long perpetuated and supreme among nations whose political organization was based upon clan, tribe, or family, is clearly discernible in these venerable collections. But, after all, to no source does the common law lie under such obligations for its doctrines and practice as to the rules and maxims of Rome. When compared with them the other legislation from which that law is derived applies inequitable, barbarous, and imperfect. The bitter hostility of the old English lawyers has never succeeded in even temporarily impairing the value of the Corpus Juris Civilis, upon the application of whose imperishable principles the administration of justice in the British Empire, as well as among all other civilized peoples as fully depends to-day as it did upon the Bosphorus and the Tiber in the age of Justinian.
Certain tribunals of special jurisdiction, that is such as have now, or formerly did have cognizance of matters relating to the Church and military and naval affairs, as well as those exercising control over members of the two Universities, were authorized to employ a course of procedure almost identical with that of the civil law. This privilege, originally obtained through the insistence of ecclesiastics, was based either upon the assent of the Crown, statutory enactment, or royal charter subsequently confirmed by Act of Parliament. The Ecclesiastical Courts, in which until 1857, were heard cases involving marriage, divorce, the probate of wills, and the testamentary distribution of estates, traced their origin to the period preceding the Norman invasion, when no distinction existed between secular and religious tribunals, so far as the questions which came before them for determination was concerned. The clergy, however, always favorable to the civil law, and jealous of the interference of laymen in matters in which the interests of the Church were concerned, and, in general, far better versed in jurisprudence than any other part of the population, not even excepting the common lawyers themselves, subsequently effected a separation of the two systems, asserting the superiority of the canon law over all others, including that of Justinian, notwithstanding it was so largely indebted to the latter.
This assumption of superiority was carried to such lengths that it was even acknowledged by English writers that the king had no jurisdiction over an ecclesiastic until after he had been degraded, and that, no matter of what crime he was guilty, his deprivation of sacerdotal functions was a sufficient expiation for it, and no other punishment could be imposed. Bracton, in the discussion of this subject, considers degradation as equivalent to the highest degree of forfeiture of civil rights under the Roman law: "Satis enim sufficit ei pro pna degradatio, quæ est magna capitis diminutio."
The civil law has long since ceased to be cited as authority in the judicial tribunals of England. With the exception of Louisiana, its force has never been officially recognized in any part of the United States. Despite these facts, its silent and unacknowledged influence in the determination of abstruse questions, in the application of legal principles, and in the administration of justice in both countries, is none the less powerful and significant. Generally speaking, the origin of this influence is, as above stated, traceable to the acceptance of the precepts of Roman jurisprudence by the old English commentators; to the power of the clergy, long paramount in secular as well as ecclesiastical affairs; and to the procedure and decisions of Courts of Equity, the heirs and beneficiaries of Prætorian jurisdiction. No treatises of ancient or modern times will bear comparison with the laws of Justinian as set forth in the Digest. Of unknown antiquity and origin they represent the very sum and substance of the rules by which civilized society is now, and always has been governed and preserved. There is probably no branch of Roman jurisprudence which has exerted such a marked influence upon that of Europe as the law of contracts. The leading principle of the civil law with reference to obligations, a term which has a broader signification in England and America than it had at Rome, was that a mere agreement, or nudum pactum, being void for want of causa, or consideration, could not be enforced: "Ex nudo pacto non oritur actio." While this rule was substantially the same under both systems, it was not held by the Romans to be invariably applicable; as when a stipulatio was formally concluded it was valid whether there was any consideration or not. In England, all oral agreements without consideration are absolutely void, there must always be a quid pro quo. The canon law, having in view the moral obligation or motive of a promise, declares such contracts to be valid.
A marked distinction was recognized between the words contractus and pactum, the first, meaning a formal agreement under which suit could be brought; the second, an informal one which originally was not actionable. The Romans considered all contracting parties as principals, and did not admit the doctrine of contractual agency, except in the case of sons under paternal control and slaves, who, being legally incapable of acquiring property except for those upon whom they were dependent, were deemed to have obtained it for them, consensual and innominate contracts, based respectively upon common consent and concluded without further ceremony, or becoming operative following the performance of an agreement by one of the parties, and so designated because there was no specific action to compel their enforcement, are unknown to the law of England.
The nexum, or obligation contracted per ses et librum, or bronze and balance, like mancipium, which it resembled, was the oldest species of formal agreement known to the Romans, and involved the surrender of a man's liberty in consideration of a loan, in case he failed to discharge the debt when it became due. It, in fact, implied provisional servitude, and was often inexorably enforced, the person of the debtor being hypothecated, and he remaining in a servile condition until, by means of his services, the claim of the creditor had been fully satisfied. The latter had a right to imprison him, if he wished to do so. The mutuum, or loan for consumption, to be repaid in kind was afterwards substituted for the nexum.
Another division was that of stricti juris and bonæ fidei. The former embraced everything that an obligation rendered operative through the use of a prescribed formula; the latter referred to all agreements not included in that category. Under a contract stricti juris no interest could be collected; but under one bonæ fidei this might be done in case of default in payment. The stipulation, the principal elements of which were a verbal promise and its acceptance accomplished by specific interrogation and reply, was the formal engagement generally in use among the Romans. When it had once been concluded, it was not susceptible of alteration, which was not the case with the innominate contract, whose distinctive feature was the fact that either party might, under certain circumstances, withdraw without incurring liability. The stipulation, being stricti juris and hence admitting of no modification, was the only one of this kind which survived the sweeping changes effected by Justinian in Roman jurisprudence. While contracts stricti juris were required to be absolutely and literally fulfilled in accordance with their terms, this rule did not apply to such as were designated bonæ fidei, in which class were included sales, leases, and bailments of every description, admitting of the performance of any additional acts which, being customary and implied, might be deemed necessary to render the agreement fully effective. Proof of fraud did not, of itself, rescind a contract stricti juris, but only opened the way to a complete restitution of former conditions, but as soon as it became evident that a contract bonæ fidei was of a fraudulent character it immediately became of no force or effect.
The stipulation was ordinarily employed for the purpose of giving security for indebtedness contracted at the same time by the person who had negotiated a loan. Such an engagement was binding in the case of an obligation coming under the law of nature or nations, and which otherwise would not legally be capable of enforcement. When a contract dependent upon a condition was entered into, and it became evident that the condition could not be carried out, it was void ab initio, just as if no agreement had ever been made; and if it failed of performance it could not be renewed: "Conditio semel defecta non resumitur."
Under the old Roman law, a woman was absolutely forbidden to become a surety, and she could not afterwards bind herself, even under a stipulation, unless this was done in behalf of the guardian of her children, or when she was proved to have deliberately been guilty of fraud. She could also render herself liable by the commission of an act which would redound to her injury, provided its disadvantageous character was apparent to every one, and she herself was aware of it. These restrictions were the result of the general legal incapacity attaching to her sex.
The position of a woman under the Roman system was one of absolute dependence during life. When the patria potestas was terminated by death, she at once became subject to either legal or testamentary guardianship. A male child could be released from tutelage at puberty; a female never was entitled to absolute freedom. If she married, she occupied the place of a daughter of her husband with all its incident restraints and disabilities. Thus, as remarked by Livy: "To every act, even of a private character, performed by a woman, our ancestors required the sanction of a guardian."
The barbarian nations that overwhelmed the Roman Empire had formed no conception of any rules by which agreements solemnly concluded bind the parties concerned, a condition which presupposes a certain advance in the arts of civilization, and a knowledge of the requirements of commercial intercourse to which they had not yet attained, and with which they, of course, were unfamiliar. This ignorance of one of the fundamental principles of ordinary business seems to have been shared by all Teutonic peoples, as the Anglo-Saxons, whose laws made so deep an impression upon English jurisprudence, had hardly a rudimentary conception of the obligatory nature of a contract.
An important class of engagements recognized by Roman legislation were certain rights established by operation of law under what were known as quasi-contracts. Among them were the negotiorum gestio, or voluntary agency, by which a man who undertook the management of another's affairs without authority, was thereby held to the exercise of the strictest diligence; the responsibility of a guardian for the proper discharge of the duties of his trust and, on the other hand, his own right of action against the ward for money expended, or security furnished for his benefit; the obligation of the heir to satisfy all claims against the estate, and especially legacies and trusts, even though he may not have been benefited by the will; the power to recover anything paid or delivered under the impression that it was due, when in fact it was not; the liability of one joint-owner to another for necessary expense incurred on account of the common property, or for the recovery of his share of the profits when they had been enjoyed by either one to the exclusion of the other; and the rule laid down by the Lex Rhodia de jactu, which required compensation for merchandise thrown overboard at sea to lighten the ship, for the benefit of all, to be made by those whose goods had not been sacrificed; these are all examples of obligations arising by implication, quasi ex contractu, when no formal or express agreement was entered into by either party, the law prescribing that liability should attach to one or the other of them according to the circumstances of each particular case.
The earliest form of matrimony among the Romans was that of marriage by purchase, or coemptio, which was reciprocal, as the name implies. By means of it the wife was said to come under the control of her husband, "convenire in manum mariti," and was legally regarded in the same light as his daughter. Hence, if the husband did not make a will and died without issue, she succeeded to his entire estate; and if there were children she was entitled to share on equal terms with them in the distribution of the same. In ancient times, as at the present day, marital unions were invested with a certain religious character, being fully as much designed for the preservation of the public sacra, and private sacerdotal rites of the Roman familia, or household, as for the perpetuation of the race. For this reason, and incidentally to maintain the social and political ascendency of the patrician order, it was essential to the validity of a marriage that both the parties should be members of the same gens. The fact that plebeians originally were not allowed to participate in the celebration of the public religious ceremonies, is stated by Latin writers to have been the cause of the prohibition of marriage between the higher and lower classes of the Roman commonwealth.
Coemptio, in the general sense, was a method of transference of the title to property by quiritarian right. As applicable to marriage, it denoted a form of adoption by means of which the patria potestas, or paternal control of the father over his daughter, was conveyed to her husband. She was said to be the mancipium of the latter, a term to a certain extent synonymous with "slave," and indicating that her husband's power over her might be relinquished in the same manner as that by which he had acquired it. Mancipatio, referred to by Gaius as a fictitious sale, "imaginaria quædam venditio," and devised for the purpose of establishing the status of the person who was the subject of it, was originally solely employed when either adoption or emancipation were to be effected. The reciprocity of the transaction did not imply an interchange of money or other property by which the purchase was concluded, but that, by means of the imaginary sale to the husband, certain rights and obligations were contracted on both sides by means of which the unitas personæ, or the unification of the two participants into a single legal personality, was accomplished, a principle long recognized to the fullest extent in England and the United States. The sale of wives in market overt, known as Smithfield marriages, and in former times frequently resorted to by the lower classes, is undoubtedly a survival of the ancient coemptio, and a reminiscence of the Roman domination in Britain, of which few other traces remain.
From coemptio is to be deduced the origin of dos, dower or dowry, a term used by Roman jurists in the opposite sense to that in which it is understood by us, and actually meaning the marriage gift by the wife, intended as compensation for the burdens assumed by the husband: "Ibi dos esse debet, ubi onera matrimonii sunt." This was symbolized by the delivery of an as, the coin in common use, by the bride, upon her entrance into her husband's house.
Notwithstanding that it is styled by Justinian, "Divini et humani juris communicatio," marriage among the Romans was, with the exception of the religious ceremony known as confarreatio, never anything but a civil contract, and, like many other similar obligations, was dissoluble by the common consent of the parties interested.
With the progress of time, the absolute rights of the husband over his wife and her property were materially curtailed; his control of her possessions was limited to the dowry; the unitas personæ was, to all intents and purposes, abolished; and to each party was conceded a distinct legal existence. The increased privileges of the wife ultimately enabled her to demand the exercise of ordinary diligence in the management of her dowry, and to have recourse to the tribunals to prevent its waste; to hold and dispose of her parapherna without consulting her husband, and sue to recover it, in case of necessity; as well as to dispose of her estate by will without any restriction.
 Digest, XXIII, III, 56, 1.
As the dowry was constituted for the purpose of providing for the expenses incurred by marriage, it naturally ceased to exist, and became returnable to the woman when the marriage was dissolved, whether by death, captivity, slavery, or divorce. The provision of a dos obtained from some source was always presumed, it being in fact the consideration of the matrimonial contract. This principle of compensation has been retained in the jurisprudence of Continental Europe, and is not unknown in practice in this country. As no bond could be executed, or other security furnished to insure the return of the dowry, the plan was devised of making a marriage settlement of equal value, designated donatio propter nuptias, for the benefit of the wife, which operated as a set-off in case the dowry was retained by the husband. In England, a settlement of this description, or jointure, when made before marriage, is a bar to the collection of the dowry, as being an equivalent for it. The Roman woman had, by virtue of a tacit hypothecation, a prior lien on her dos, as against all creditors. This was not the case, however, in early times, when the husband was substantially the owner of his wife, and the right to everything she possessed was vested in him. Gradually, either by custom, or by express acts of legislation, he was deprived of this right, and from being the absolute owner, he became a mere tenant or usufructuary, without the power of alienation, even with his wife's consent, when the dowry consisted of real property; and when it was composed of chattels, while he was at liberty to dispose of them, he was required to replace them with similar articles of the same nature, equal in number and value. On account of the favor conceded to liberty, a husband was permitted to manumit dotal slaves in his possession, while he was living, or under the terms of his will. He could not, however, by so doing, defraud his wife, who was entitled to an action against him or his heir to recover what the slaves actually were worth, regardless of the price which he had obtained for them.
The Romans, having in view the interests of children already born, regarded second marriages with disfavor; and for this reason encouraged the institution of concubinage. This relation was not attended with the opprobrium which at present attaches to it, and was legalized and regulated by statutory enactment, as an union which differed mainly from marriage in the fact that the father did not acquire paternal control over the issue resulting therefrom, as he did over his legitimate offspring, nor could they succeed to him as heirs. The children of the quasi matrimonial connection were acknowledged by their father, and could exact maintenance from him, if he refused it. The general rights of the parties in marriage and concubinage were almost identical.
The disabilities of married women, as exemplified in the jurisprudence of both England and Scotland, have very properly been attributed to the influence of the Canon Law. The Romans, especially in the later days of the Empire, were much more indulgent in this respect than the churchmen, whose intolerance and jealousy of power induced them to restrict to the utmost the freedom of the marriage relation, and especially with reference to wives, over whom, by means of their spiritual ministrations, they exercised almost absolute control.
Modern jurisprudence, not only in Continental Europe, but also in England and America, is indebted to the Civil Law for the greater portion of the rules regulating the constitution of dower, and the rights and duties of matrimony; and wherever these have undergone alteration in the interest of the clergy it has almost invariably been for the worse.
The institution of marriage, as the basis of the Roman familia, whose existence was held to be eternal, was also regarded merely as a means for the creation and continuance of the patria potestas, or paternal authority, from which was derived some of the most prized and exclusive privileges of Roman citizenship. This arbitrary power has no parallel anywhere in the irresponsible and despotic authority which the Roman father could legally exert over his offspring and the other members of his household. The person in whom it was vested was declared by law to be him, "Qui in domo dominium habet"; and it was of such antiquity that the Romans themselves were ignorant of its source. It has been suggested that it may have been a consequence of the office of celebrant of the ceremonies of private family worship, as well as a participant in the public sacra, rights enjoyed by every Roman citizen; and hence had a semi-religious origin. Only extinguished with the fall of the Empire, it is a significant indication of the general acknowledgment of the unrestricted control of a parent over the destinies of his children, that the paterfamilias is not mentioned by the Lex Pompeia de Paricidiis, enacted for the punishment of persons guilty of the murder of those closely related to them by the bond of consanguinity.
Subject to paternal ownership, children in the early days of Rome were treated with no more consideration than domestic animals. It was entirely optional with the father whether his offspring should be spared and brought up, or abandoned and suffered to die of starvation. Even during the palmy days of the Empire, infanticide was frequently practised to avoid expense. Under the reign of Constantine it was made legal for parents to sell their children as soon as they were born, when they were too poor to support them; and this inhuman and unnatural privilege was freely exercised for many subsequent centuries. A child, like a slave or an ox, could be surrendered by its father by way of reparation for any damage it had caused; thus enabling him to evade responsibility on the ground that it attached to whatever had committed the act: "Noxa caput sequitur."
Under the Roman law, which differed in this respect from that of England, a child was obliged to provide for the necessities of its parents if the latter were in indigent circumstances, the duties of the relation being reciprocal.
 Digest, L, XVI, 195.
Patria potestas was lost by death, forfeiture of civil rights, adoption, and emancipation, but neither marriage nor the attainment of majority, had any effect, so far as the release of paternal authority was concerned.
Whenever it became necessary to protect the rights of a child, its birth was considered to date from the hour of its conception. An infant under the Roman law was one less than seven years old; a minor, a male under fourteen, and a female under twelve, indicative of the age of puberty; an adult a youth who had reached that age. The issue of parents, one of whom was an alien, were not entitled to citizenship. The term natural, when applied to children, did not, as with us, denote an illegitimate origin, but meant such as had been begotten, as distinguished from those who were adopted. Legitimation of bastards by subsequent marriage was limited to the progeny of concubines; a rule utterly at variance with the Common Law of England, by which the stigma of illegitimacy always attached to children born out of wedlock.
The Roman law of descent and testamentary distribution was mainly borrowed from Greece, but in time underwent such radical changes that its original feature can now with difficulty be recognized. The appointment of an heir, who in many respects corresponded to an executor, was indispensable to the validity of the will. Before the adoption of the Laws of the Twelve Tables, wills were always oral, and could only be made in the presence of the Comitia Calata, or popular assembly, which was regularly convoked semi-annually principally for this purpose, and this, in every instance, practically amounted to the enactment of a special statute authorizing the bequests by the testator. This of course, it has been conjectured, was considered necessary on the ground that when anyone died his estate reverted to the community at large and this right had to be publicly renounced by his representatives to enable the testator to dispose of his property.
Testamentary capacity did not merely refer to a man's legal competency to make a will, but whether he was qualified to take under it, or even act as a witness to the same; and it was essential that such competency should not only exist at the time when the will was executed, but that it should also continue until the hour of his death.
The doctrine of unitas personæ was applicable to the testator and the suus hæres, or direct and proper heir of the deceased; hence the estate was not held to be in reality transmitted, but simply to remain under the control of one who already was a legal possessor of it; and all existing rights, privileges, duties, and liabilities, were either enjoyed by, or charged upon the survivor. Until the appearance of the heir, the estate was the legal representative of the deceased. The law of primogeniture was unknown to the Romans, who, also, from the era of the Twelve Tables, made no distinction with regard to sex in the matter of inheritance. At Civil Law, the heir succeeded to the entire estate, in which respect he differed from the heir at Common Law, who, by right of consanguinity, succeeded only to the real property. Sons and daughters, alike, succeeded per capita, while grandchildren
the issue of a son succeeded per stirpes; in England they succeed per capita. Under the Civil Law, the rule of descent to ascertain the next of kin required the calculation to be made up through the ascending, and then down through the collateral line; in which respect it differed from the Canon Law, according to which the count was only made down, and in divergence from the direct line. In England, the degrees determining the next of kin in the distribution of chattels are ascertained in compliance with the rule of the civil law; the canon law however, is followed when the question of the descent of real property arises.
The right of representation in the collateral line was not admitted, but the next in degree took precedence, and the succession was never per stirpes. From the Twelve Tables to the reign of Justinian, the claim of cognates, or heirs in the female line, were not recognized when settling the right of inheritance in case of intestacy; for the reason that if this had been done, the estate would have passed into some other gens, a condition contrary to all the maxims and traditions of the Roman polity. This doctrine was carried to such an extent that when a woman entered another family, whatever she possessed was at once transferred to her next of kin. Property of any description could not ascend, as a child under paternal control was incapable of ownership, and whatever he might have belonged to his father. A similar rule existed at common law so far as land was concerned, as it could not pass to ascendants.
Justinian changed the ancient practice by which if a son was neither appointed heir nor specifically disinherited, the will was void, by extending this regulation to all legitimate children, without exception.
Previous to the adoption of the Laws of the Twelve Tables, no rule of testamentary disposition had been either devised or formulated at Rome. Where a man had not already actually transferred his estate to some one, it passed to those legally entitled to it, who were styled hæredes legitimi, or heirs-at-law. The Twelve Tables conferred upon the owner of property unrestricted authority to dispose of it at his pleasure, regardless of the moral claims which might with justice be urged by his descendants. The harshness of this custom was subsequently modified on the ground of paternal duty, and the estate at once remained entirely in the hands of the heir, who, prior to that time, had through the legal fiction of the unitas personæ, been regarded as invested with a quasi joint-ownership of the same.
The rules of intestate succession as laid down in the Institutes and Digest, were materially altered in the Novels, which now constitute the basis of all jurisprudence on the subject. Under the original provisions of the Civil Law, in determining the distribution of estates in case of intestacy, the sui heredes took precedence; and, in default of them the agnates, or persons related solely through males, succeeded; and after these came the members of the gens. Various decrees of the Senate, and the equitable ruling of the Prætor, from time to time modified the severe restrictions imposed by the Twelve Tables, in this as in many other instances; and grandchildren, mothers, and sisters, in addition to the others above mentioned, were allowed to share in the distribution. The reforms instituted by Justinian in the Seventy-fourth, Eighty-ninth, and One hundred and eighteenth Novels, disposed of the sui heredes; abolished all distinction between agnates and cognates; and admitted to the succession ascendants and certain relatives in the collateral line, who had hitherto been absolutely excluded. Among the latter were brothers and sisters of the half blood and their issue. All descendants, without reference to sex, came first in the order of succession; and, in the case of the failure of blood relatives, either the husband or wife became the legal heir. Where no wife or children survived, a concubine and her offspring could claim one sixth of the parent's property. An adopted child could inherit the estate of its adoptive father. Anyone who was both an agnate and a cognate derived his title as heir from cognation. The cardinal principle of the right of intestate succession, established by Justinian, was founded upon consanguinity.
Under the Lex Julia et Papia, when no one appeared to claim the inheritance, it escheated to the Public Treasury; except under certain circumstances when the comrades-in-arms of a deceased soldier, the municipality, the curia, or a corporation to which the decedent belonged, could demand it to the exclusion of the State.
A radical difference exists under the civil and the canon law, in the calculation of degrees of descent in the collateral line. The former counts the number from the ancestor on both sides; the latter only on one. Hence, by the civil law, brothers are related in the second and by the canon law in the first degree. The rule of the canon law has been adopted in England, while that of the civil law generally prevails in the United States.
Under the more recent legislation of Justinian, no one was qualified to inherit who was not a member of the orthodox Christian communion. This provision, undoubtedly to be ascribed to the sinister influence of ecclesiastics, was largely instrumental in extending the authority of the Church to all matters connected with the inheritance and distribution of estates in England; and, contributing greatly to the power and wealth of the clergy, ultimately manifested itself in the gross abuses arising from the claim of papal supremacy.
The genius of the Roman, as disclosed by his attainments in arts, arms, and literature, was eminently practical. The inconclusive subtleties of philosophy, the sophistry and speculative dissertations of the various Grecian schools, exerted no important influence on the intellectual or political life of the stern and utilitarian masters of the world. In the formulation and application of legal principles, their inclinations and their administrative ability were eminently favorable to the development and exercise of their talents in this direction. To the enlightened wisdom and example of the renowned Roman lawyers are to be credited the maxims and doctrines which find expression in the proceedings of every judicial tribunal of to-day. The rules of the civil law, as laid down and promulgated by Justinian, more than any other factor, have contributed to the establishment of modern civilization, to the maintenance of good government and public order, and to the preservation of the vital interests of society; well meriting as its own the encomium so aptly bestowed upon jurisprudence in general, when it was designated as: "The pride of the human intellect, which, with all its defects, redundancies, and errors, is the collected reason of ages, combining the principles of original justice with the infinite variety of human concerns."
The jurisprudence of all nations, with the exception of ancient Egypt and Phnicia, of which no legal memorials are extant, and of modern Greece with whose idiom the translator is not sufficiently familiar which however, corresponds with that of the other countries of Continental Europe, has been made the subject of examination in these volumes. Reference to the various Codes of Spanish America, whose provisions are almost identical with those of France and Spain, has, for this reason, also been omitted.
The comparison of the various judicial systems as set forth in the notes to this work have been made, not so much to show their present resemblances or discrepancies, as to bring to the attention of the reader their original derivation from the civil law and the obligations they owe to the most voluminous and comprehensive body of legislation which has ever been compiled.
In making the translation, which it has taken eight years to complete, attention has been paid rather to the accurate rendering of the letter and spirit of the text, whenever this was possible, than to the strict rules of grammar.
The substance of the citations in French, Spanish, Portuguese, Italian, German, Dutch, Danish, Swedish, and Latin, has almost invariably been given in English, for the benefit of persons not conversant with those languages; the excerpts in the antiquated legal jargon employed by Britton, Staunforde, Littleton, and Plowden, which every well-informed lawyer is presumed to understand, have, for the most part, been left for the decipherment of the reader.
February 11, 1922.
THIS TRANSLATION HAS BEEN MADE FROM:
Leges XII Tabvlorvm, Svis Qvotqvot Reperiri Potvervnt Fragmentis Restitvtæ, A Ioh, Nicolao Fvnccio, 4to. Rintelii, MDCCXLIV.
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Ivlii Pavlii, Sententiarum ad Filium, Libri Quinque, 12mo. Lipsiæ, MDCCCLXXXVI.
Domitii Vlpiani, Fragmenta, 12mo. Lipsiæ, MDCCCLXXXVI.
Fontes Iuris Romani Antejustiniani, 12mo. Florentiæ, MCMVIII.
Corpus Juris Civilis Pandectis ad Florentinum archetypum expressis, Institutionum, Codice et Novellis, cum notis integris repetitæ quintum prælectionis. Dionysii Gothofredi JC. 2 vols. Fo. Amstelodami, MDCLXIII.
Corpus Juris Civilis, Recognoverunt Adnotationibusque Criticis Instructum, Ediderunt D. Albertus et D. Mauritius, Fratres Kriegelii. D. Aemilius Hermann. D. Eduardus Osenbruggen, 3 vols. 8vo. Lipsiæ, 1872.
Pandectæ Justinianeæ in Novum Ordinem Digestæ (Pothier), 20 vols. 8vo. Paris, 1823.
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