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
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
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
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
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 bonŠ 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 quŠ sunt moris et consuetudinis in bonŠ 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 RegiŠ, 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 RegiŠ 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 RegiŠ
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
De Ăneide 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
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
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
gŕnas 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 imź
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
mediŠval 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
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
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 RegiŠ, 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
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
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
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
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 PrŠtorian 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 "SententiŠ," 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
 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, prŠtors,
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
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
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
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
prŠtorian law, composed of magisterial edicts, in the formulation of
which a large measure of discretion was conceded to the PrŠtor, 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
PrŠtor, 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
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
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
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 PrŠtorium, or equity jurisdiction of
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
prŠtors, created from time to time as occasion demanded. Of these the
prŠtors, 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 PrŠtor Urbanus, was superior in rank to the latter,
the PrŠtor Peregrinus.
Cicero informs us that the term "prŠtor" 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
PrŠtor 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 PrŠtors,
which figure CŠsar raised to sixteen. During the Empire, however, the
original number was restored.
The PrŠtor 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 PrŠtor 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 PrŠtorian 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 PrŠtor 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
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 PrŠtor 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: Ăquitas
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
The decree of the PrŠtor 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 PrŠtor, 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 PrŠtorian Tribunal, was styled a
"judex" or "arbiter," in the Court of
Chancery, a "master."
The equitable jurisdiction of the PrŠtor, 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 Šquitatem — 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 PrŠtor, such as tribunes,
quŠstors, censors, Šdiles, 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 PrŠtor was curtailed of much of its importance by the
transfer of many of its functions to the courts of the Urban and
As the duties of the Consuls frequently required them to be absent from
Rome, the PrŠtor, 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 PrŠtor, 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
PrŠtor 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
PrŠtor, 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
 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 PrŠtorian 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
PrŠtor 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
PrŠtorian 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 PrŠtor. 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 Šquitatem 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
Notwithstanding the great latitude allowed him in rendering judgment, the
PrŠtor 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
While the PrŠtor 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 PrŠtor 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 PrŠtor, 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 PrŠtor, 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 bonŠ fidei, that is
those styled arbitrariŠ, 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, PrŠtorian Prefects,
QuŠstors, and Curule Ădiles — 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 PrŠtor 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 PrŠtor, 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
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
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 extrŕmement heureux et les hommes
extrŕmement malheureux sont Úgalement portÚs Ó la
duretÚ; tÚmoin les moines et les conquÚrants. Il n'y a que
la mÚdiocritÚ et le mÚlange de la bonne et de la mauvaise
fortune qui donnent de la douceur et de la pitiÚ."
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 ŕtre jurisconsulte, tout
jurisconsulte devrait ŕtre 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
PrŠtor 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
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 familiŠ, 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
mediŠval times by the imposition of an interdict upon recalcitrant or
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 PrŠtor, 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 PrŠtor for
examination. If a compromise could not be effected, the judge was selected from
a list of persons whose names were enrolled upon the PrŠtor's album
judicium, their eligibility being dependent upon pecuniary qualifications
prescribed by Jaw. The appointee was usually a senator, but this was not
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 Sch÷ffen, 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
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 pœnŠ, the slave of punishment. Conviction of a serious
crime also involved the forfeiture of citizenship, a condition equivalent to
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 PrŠtor 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 prŠtorian actions found their way into Roman
jurisprudence, they were subject to limitation of time, and were only available
during the year in which the PrŠtor 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
bonŠ 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 prŠtorian 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
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
Commentarius Juris Anglicani, I, 1.
The Roman Empire, from the reign of Constantine, was, for both
administrative and judicial purposes, divided into four PrŠtorian
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
PrŠtorian Prefects of the two great capitals were the successors of the
Urban PrŠtor. 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
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
 Glanvil, Tractatus de Legibus & Consuetudinibus
AngliŠ, 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
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
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
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 pœna degradatio, quŠ est magna capitis
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 PrŠtorian 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 bonŠ
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 bonŠ 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 bonŠ 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 bonŠ 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
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
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 quŠdam 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 personŠ, 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 personŠ 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
 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
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
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 personŠ was applicable to the testator
and the suus hŠres, 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
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 hŠredes 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
personŠ, been regarded as invested with a quasi joint-ownership of
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
PrŠtor, 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
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
Phœnicia, 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
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
February 11, 1922.
THIS TRANSLATION HAS BEEN MADE FROM:
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Ivlii Pavlii, Sententiarum ad Filium, Libri Quinque, 12mo. LipsiŠ,
Domitii Vlpiani, Fragmenta, 12mo. LipsiŠ, MDCCCLXXXVI.
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Corpus Juris Civilis Pandectis ad Florentinum archetypum expressis,
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Corpus Juris Civilis, Recognoverunt Adnotationibusque Criticis Instructum,
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PandectŠ JustinianeŠ in Novum Ordinem DigestŠ (Pothier),
20 vols. 8vo. Paris, 1823.
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