Idea Of The Roman Jurisprudence. — The Laws Of The Kings — The Twelve Of The Decemvirs. — The Laws Of The People. — The Decrees Of The Senate. — The Edicts Of The Magistrates And Emperors — Authority Of The Civilians. — Code, Pandects, Novels, And Institutes Of Justinian:— I. Rights Of Persons. — II. Rights Of Things. — III. Private Injuries And Actions. — IV. Crimes And Punishments.
Note: In the notes to this important chapter, which is received as the text-book on Civil Law in some of the foreign universities, I have consulted,
I. the newly-discovered Institutes of Gaius, (Gaii Institutiones, ed. Goeschen, Berlin, 1824,) with some other fragments of the Roman law, (Codicis Theodosiani Fragmenta inedita, ab Amadeo Peyron. Turin, 1824.)
II. The History of the Roman Law, by Professor Hugo, in the French translation of M. Jourdan. Paris, 1825.
III. Savigny, Geschichte des Romischen Rechts im Mittelalter, 6 bande, Heidelberg, 1815.
IV. Walther, Romische Rechts-Geschichte, Bonn. 1834. But I am particularly indebted to an edition of the French translation of this chapter, with additional notes, by one of the most learned civilians of Europe, Professor Warnkonig, published at Liege, 1821. I have inserted almost the whole of these notes, which are distinguished by the letter W. — M.
The vain titles of the victories of Justinian are crumbled into dust; but the name of the legislator is inscribed on a fair and everlasting monument. Under his reign, and by his care, the civil jurisprudence was digested in the immortal works of the Code, the Pandects, and the Institutes: 1 the public reason of the Romans has been silently or studiously transfused into the domestic institutions of Europe, 2, and the laws of Justinian still command the respect or obedience of independent nations. Wise or fortunate is the prince who connects his own reputation with the honor or interest of a perpetual order of men. The defence of their founder is the first cause, which in every age has exercised the zeal and industry of the civilians. They piously commemorate his virtues; dissemble or deny his failings; and fiercely chastise the guilt or folly of the rebels, who presume to sully the majesty of the purple. The idolatry of love has provoked, as it usually happens, the rancor of opposition; the character of Justinian has been exposed to the blind vehemence of flattery and invective; and the injustice of a sect (the Anti-Tribonians,) has refused all praise and merit to the prince, his ministers, and his laws. 3 Attached to no party, interested only for the truth and candor of history, and directed by the most temperate and skilful guides, 4 I enter with just diffidence on the subject of civil law, which has exhausted so many learned lives, and clothed the walls of such spacious libraries. In a single, if possible in a short, chapter, I shall trace the Roman jurisprudence from Romulus to Justinian, 5 appreciate the labors of that emperor, and pause to contemplate the principles of a science so important to the peace and happiness of society. The laws of a nation form the most instructive portion of its history; and although I have devoted myself to write the annals of a declining monarchy, I shall embrace the occasion to breathe the pure and invigorating air of the republic.
1 The civilians of the darker ages have established an absurd and incomprehensible mode of quotation, which is supported by authority and custom. In their references to the Code, the Pandects, and the Institutes, they mention the number, not of the book, but only of the law; and content themselves with reciting the first words of the title to which it belongs; and of these titles there are more than a thousand. Ludewig (Vit. Justiniani, p. 268) wishes to shake off this pendantic yoke; and I have dared to adopt the simple and rational method of numbering the book, the title, and the law.
Note: The example of Gibbor has been followed by M Hugo and other civilians. — M]
2 Germany, Bohemia, Hungary, Poland, and Scotland, have received them as common law or reason; in France, Italy, &c., they possess a direct or indirect influence; and they were respected in England, from Stephen to Edward I. our national Justinian, (Duck. de Usu et Auctoritate Juris Civilis, l. ii. c. 1, 8 — 15. Heineccius, Hist. Juris Germanici, c. 3, 4, No. 55 — 124, and the legal historians of each country.)
Note: Although the restoration of the Roman law, introduced by the revival of this study in Italy, is one of the most important branches of history, it had been treated but imperfectly when Gibbon wrote his work. That of Arthur Duck is but an insignificant performance. But the researches of the learned have thrown much light upon the matter. The Sarti, the Tiraboschi, the Fantuzzi, the Savioli, had made some very interesting inquiries; but it was reserved for M. de Savigny, in a work entitled “The History of the Roman Law during the Middle Ages,” to cast the strongest right on this part of history. He demonstrates incontestably the preservation of the Roman law from Justinian to the time of the Glossators, who by their indefatigable zeal, propagated the study of the Roman jurisprudence in all the countries of Europe. It is much to be desired that the author should continue this interesting work, and that the learned should engage in the inquiry in what manner the Roman law introduced itself into their respective countries, and the authority which it progressively acquired. For Belgium, there exists, on this subject, (proposed by the Academy of Brussels in 1781,) a Collection of Memoirs, printed at Brussels in 4to., 1783, among which should be distinguished those of M. de Berg. M. Berriat Saint Prix has given us hopes of the speedy appearance of a work in which he will discuss this question, especially in relation to France. M. Spangenberg, in his Introduction to the Study of the Corpus Juris Civilis Hanover, 1817, 1 vol. 8vo. p. 86, 116, gives us a general sketch of the history of the Roman law in different parts of Europe. We cannot avoid mentioning an elementary work by M. Hugo, in which he treats of the History of the Roman Law from Justinian to the present Time, 2d edit. Berlin 1818 W.]
3 Francis Hottoman, a learned and acute lawyer of the xvith century, wished to mortify Cujacius, and to please the Chancellor de l’Hopital. His Anti-Tribonianus (which I have never been able to procure) was published in French in 1609; and his sect was propagated in Germany, (Heineccius, Op. tom. iii. sylloge iii. p. 171 — 183.)
Note: Though there have always been many detractors of the Roman law, no sect of Anti-Tribonians has ever existed under that name, as Gibbon seems to suppose. — W.]
4 At the head of these guides I shall respectfully place the learned and perspicuous Heineccius, a German professor, who died at Halle in the year 1741, (see his Eloge in the Nouvelle Bibliotheque Germanique, tom. ii. p. 51 — 64.) His ample works have been collected in eight volumes in 4to. Geneva, 1743 — 1748. The treatises which I have separately used are,
1. Historia Juris Romani et Germanici, Lugd. Batav. 1740, in 8 vo.
2. Syntagma Antiquitatum Romanam Jurisprudentiam illustrantium, 2 vols. in 8 vo. Traject. ad Rhenum.
3. Elementa Juris Civilis secundum Ordinem Institutionum, Lugd. Bat. 1751, in 8 vo.
4. Elementa J. C. secundum Ordinem Pandectarum Traject. 1772, in 8vo. 2 vols.
Note: Our author, who was not a lawyer, was necessarily obliged to content himself with following the opinions of those writers who were then of the greatest authority; but as Heineccius, notwithstanding his high reputation for the study of the Roman law, knew nothing of the subject on which he treated, but what he had learned from the compilations of various authors, it happened that, in following the sometimes rash opinions of these guides, Gibbon has fallen into many errors, which we shall endeavor in succession to correct.
The work of Bach on the History of the Roman Jurisprudence, with which Gibbon was not acquainted, is far superior to that of Heineccius and since that time we have new obligations to the modern historic civilians, whose indefatigable researches have greatly enlarged the sphere of our knowledge in this important branch of history. We want a pen like that of Gibbon to give to the more accurate notions which we have acquired since his time, the brilliancy, the vigor, and the animation which Gibbon has bestowed on the opinions of Heineccius and his contemporaries. — W]
5 Our original text is a fragment de Origine Juris (Pandect. l. i. tit. ii.) of Pomponius, a Roman lawyer, who lived under the Antonines, (Heinecc. tom. iii. syl. iii. p. 66 — 126.) It has been abridged, and probably corrupted, by Tribonian, and since restored by Bynkershoek (Opp. tom. i. p. 279 — 304.)]
The primitive government of Rome 6 was composed, with some political skill, of an elective king, a council of nobles, and a general assembly of the people. War and religion were administered by the supreme magistrate; and he alone proposed the laws, which were debated in the senate, and finally ratified or rejected by a majority of votes in the thirty curiae or parishes of the city. Romulus, Numa, and Servius Tullius, are celebrated as the most ancient legislators; and each of them claims his peculiar part in the threefold division of jurisprudence. 7 The laws of marriage, the education of children, and the authority of parents, which may seem to draw their origin from nature itself, are ascribed to the untutored wisdom of Romulus. The law of nations and of religious worship, which Numa introduced, was derived from his nocturnal converse with the nymph Egeria. The civil law is attributed to the experience of Servius: he balanced the rights and fortunes of the seven classes of citizens; and guarded, by fifty new regulations, the observance of contracts and the punishment of crimes. The state, which he had inclined towards a democracy, was changed by the last Tarquin into a lawless despotism; and when the kingly office was abolished, the patricians engrossed the benefits of freedom. The royal laws became odious or obsolete; the mysterious deposit was silently preserved by the priests and nobles; and at the end of sixty years, the citizens of Rome still complained that they were ruled by the arbitrary sentence of the magistrates. Yet the positive institutions of the kings had blended themselves with the public and private manners of the city, some fragments of that venerable jurisprudence 8 were compiled by the diligence of antiquarians, 9 and above twenty texts still speak the rudeness of the Pelasgic idiom of the Latins. 10
6 The constitutional history of the kings of Rome may be studied in the first book of Livy, and more copiously in Dionysius Halicarnassensis, (l. li. p. 80 — 96, 119 — 130, l. iv. p. 198 — 220,) who sometimes betrays the character of a rhetorician and a Greek.
Note: M. Warnkonig refers to the work of Beaufort, on the Uncertainty of the Five First Ages of the Roman History, with which Gibbon was probably acquainted, to Niebuhr, and to the less known volume of Wachsmuth, “Aeltere Geschichte des Rom. Staats.” To these I would add A. W. Schlegel’s Review of Niebuhr, and my friend Dr. Arnold’s recently published volume, of which the chapter on the Law of the XII. Tables appears to me one of the most valuable, if not the most valuable, chapter. — M.]
7 This threefold division of the law was applied to the three Roman kings by Justus Lipsius, (Opp. tom. iv. p. 279;) is adopted by Gravina, (Origines Juris Civilis, p. 28, edit. Lips. 1737:) and is reluctantly admitted by Mascou, his German editor.
Note: Whoever is acquainted with the real notions of the Romans on the jus naturale, gentium et civile, cannot but disapprove of this explanation which has no relation to them, and might be taken for a pleasantry. It is certainly unnecessary to increase the confusion which already prevails among modern writers on the true sense of these ideas. Hugo. — W]
8 The most ancient Code or Digest was styled Jus Papirianum, from the first compiler, Papirius, who flourished somewhat before or after the Regifugium, (Pandect. l. i. tit. ii.) The best judicial critics, even Bynkershoek (tom. i. p. 284, 285) and Heineccius, (Hist. J. C. R. l. i. c. 16, 17, and Opp. tom. iii. sylloge iv. p. 1 — 8,) give credit to this tale of Pomponius, without sufficiently adverting to the value and rarity of such a monument of the third century, of the illiterate city. I much suspect that the Caius Papirius, the Pontifex Maximus, who revived the laws of Numa (Dionys. Hal. l. iii. p. 171) left only an oral tradition; and that the Jus Papirianum of Granius Flaccus (Pandect. l. L. tit. xvi. leg. 144) was not a commentary, but an original work, compiled in the time of Caesar, (Censorin. de Die Natali, l. iii. p. 13, Duker de Latinitate J. C. p. 154.)
Note: Niebuhr considers the Jus Papirianum, adduced by Verrius Fiaccus, to be of undoubted authenticity. Rom. Geschichte, l. 257. — M. Compare this with the work of M. Hugo. — W.]
9 A pompous, though feeble attempt to restore the original, is made in the Histoire de la Jurisprudence Romaine of Terasson, p. 22 — 72, Paris, 1750, in folio; a work of more promise than performance.]
10 In the year 1444, seven or eight tables of brass were dug up between Cortona and Gubio. A part of these (for the rest is Etruscan) represents the primitive state of the Pelasgic letters and language, which are ascribed by Herodotus to that district of Italy, (l. i. c. 56, 57, 58;) though this difficult passage may be explained of a Crestona in Thrace, (Notes de Larcher, tom. i. p. 256 — 261.) The savage dialect of the Eugubine tables † has exercised, and may still elude, the divination of criticism; but the root is undoubtedly Latin, of the same age and character as the Saliare Carmen, which, in the time of Horace, none could understand. The Roman idiom, by an infusion of Doric and Aeolic Greek, was gradually ripened into the style of the xii. tables, of the Duillian column, of Ennius, of Terence, and of Cicero, (Gruter. Inscript. tom. i. p. cxlii. Scipion Maffei, Istoria Diplomatica, p. 241 — 258. Bibliotheque Italique, tom. iii. p. 30 — 41, 174 — 205. tom. xiv. p. 1 — 52.)
Note: The Eugubine Tables have exercised the ingenuity of the Italian and German critics; it seems admitted (O. Muller, die Etrusker, ii. 313) that they are Tuscan. See the works of Lanzi, Passeri, Dempster, and O. Muller. — M]
I shall not repeat the well-known story of the Decemvirs, 11 who sullied by their actions the honor of inscribing on brass, or wood, or ivory, the Twelve Tables of the Roman laws. 12 They were dictated by the rigid and jealous spirit of an aristocracy, which had yielded with reluctance to the just demands of the people. But the substance of the Twelve Tables was adapted to the state of the city; and the Romans had emerged from Barbarism, since they were capable of studying and embracing the institutions of their more enlightened neighbors. * A wise Ephesian was driven by envy from his native country: before he could reach the shores of Latium, he had observed the various forms of human nature and civil society: he imparted his knowledge to the legislators of Rome, and a statue was erected in the forum to the perpetual memory of Hermodorus. 13 The names and divisions of the copper money, the sole coin of the infant state, were of Dorian origin: 14 the harvests of Campania and Sicily relieved the wants of a people whose agriculture was often interrupted by war and faction; and since the trade was established, 15 the deputies who sailed from the Tyber might return from the same harbors with a more precious cargo of political wisdom. The colonies of Great Greece had transported and improved the arts of their mother country. Cumae and Rhegium, Crotona and Tarentum, Agrigentum and Syracuse, were in the rank of the most flourishing cities. The disciples of Pythagoras applied philosophy to the use of government; the unwritten laws of Charondas accepted the aid of poetry and music, 16 and Zaleucus framed the republic of the Locrians, which stood without alteration above two hundred years. 17 From a similar motive of national pride, both Livy and Dionysius are willing to believe, that the deputies of Rome visited Athens under the wise and splendid administration of Pericles; and the laws of Solon were transfused into the twelve tables. If such an embassy had indeed been received from the Barbarians of Hesperia, the Roman name would have been familiar to the Greeks before the reign of Alexander; 18 and the faintest evidence would have been explored and celebrated by the curiosity of succeeding times. But the Athenian monuments are silent; nor will it seem credible that the patricians should undertake a long and perilous navigation to copy the purest model of democracy. In the comparison of the tables of Solon with those of the Decemvirs, some casual resemblance may be found; some rules which nature and reason have revealed to every society; some proofs of a common descent from Egypt or Phoenicia. 19 But in all the great lines of public and private jurisprudence, the legislators of Rome and Athens appear to be strangers or adverse at each other.
11 Compare Livy (l. iii. c. 31 — 59) with Dionysius Halicarnassensis, (l. x. p. 644 — xi. p. 691.) How concise and animated is the Roman — how prolix and lifeless the Greek! Yet he has admirably judged the masters, and defined the rules, of historical composition.]
12 From the historians, Heineccius (Hist. J. R. l. i. No. 26) maintains that the twelve tables were of brass — aereas; in the text of Pomponius we read eboreas; for which Scaliger has substituted roboreas, (Bynkershoek, p. 286.) Wood, brass, and ivory, might be successively employed.
Note: Compare Niebuhr, vol. ii. p. 349, &c. — M.]
* Compare Niebuhr, 355, note 720. — M. It is a most important question whether the twelve tables in fact include laws imported from Greece. The negative opinion maintained by our author, is now almost universally adopted, particularly by Mm. Niebuhr, Hugo, and others. See my Institutiones Juris Romani privati Leodii, 1819, p. 311, 312. — W. Dr. Arnold, p. 255, seems to incline to the opposite opinion. Compare some just and sensible observations in the Appendix to Mr. Travers Twiss’s Epitome of Niebuhr, p. 347, Oxford, 1836. — M.]
13 His exile is mentioned by Cicero, (Tusculan. Quaestion. v. 36; his statue by Pliny, (Hist. Nat. xxxiv. 11.) The letter, dream, and prophecy of Heraclitus, are alike spurious, (Epistolae Graec. Divers. p. 337.
Note: Compare Niebuhr, ii. 209. — M. See the Mem de l’Academ. des Inscript. xxii. p. 48. It would be difficult to disprove, that a certain Hermodorus had some share in framing the Laws of the Twelve Tables. Pomponius even says that this Hermodorus was the author of the last two tables. Pliny calls him the Interpreter of the Decemvirs, which may lead us to suppose that he labored with them in drawing up that law. But it is astonishing that in his Dissertation, (De Hermodoro vero XII. Tabularum Auctore, Annales Academiae Groninganae anni 1817, 1818,) M. Gratama has ventured to advance two propositions entirely devoid of proof: “Decem priores tabulas ab ipsis Romanis non esse profectas, tota confirma Decemviratus Historia,” et “Hermodorum legum decemviralium ceri nominis auctorem esse, qui eas composuerit suis ordinibus, disposuerit, suaque fecerit auctoritate, ut a decemviris reciperentur.” This truly was an age in which the Roman Patricians would allow their laws to be dictated by a foreign Exile! Mr. Gratama does not attempt to prove the authenticity of the supposititious letter of Heraclitus. He contents himself with expressing his astonishment that M. Bonamy (as well as Gibbon) will be receive it as genuine. — W.]
14 This intricate subject of the Sicilian and Roman money, is ably discussed by Dr. Bentley, (Dissertation on the Epistles of Phalaris, p. 427 — 479,) whose powers in this controversy were called forth by honor and resentment.]
15 The Romans, or their allies, sailed as far as the fair promontory of Africa, (Polyb. l. iii. p. 177, edit. Casaubon, in folio.) Their voyages to Cumae, &c., are noticed by Livy and Dionysius.]
16 This circumstance would alone prove the antiquity of Charondas, the legislator of Rhegium and Catana, who, by a strange error of Diodorus Siculus (tom. i. l. xii. p. 485 — 492) is celebrated long afterwards as the author of the policy of Thurium.]
17 Zaleucus, whose existence has been rashly attacked, had the merit and glory of converting a band of outlaws (the Locrians) into the most virtuous and orderly of the Greek republics. (See two Memoirs of the Baron de St. Croix, sur la Legislation de la Grande Grece Mem. de l’Academie, tom. xlii. p. 276 — 333.) But the laws of Zaleucus and Charondas, which imposed on Diodorus and Stobaeus, are the spurious composition of a Pythagorean sophist, whose fraud has been detected by the critical sagacity of Bentley, p. 335 — 377.]
18 I seize the opportunity of tracing the progress of this national intercourse 1. Herodotus and Thucydides (A. U. C. 300 — 350) appear ignorant of the name and existence of Rome, (Joseph. contra Appion tom. ii. l. i. c. 12, p. 444, edit. Havercamp.) 2. Theopompus (A. U. C. 400, Plin. iii. 9) mentions the invasion of the Gauls, which is noticed in looser terms by Heraclides Ponticus, (Plutarch in Camillo, p. 292, edit. H. Stephan.) 3. The real or fabulous embassy of the Romans to Alexander (A. U. C. 430) is attested by Clitarchus, (Plin. iii. 9,) by Aristus and Asclepiades, (Arrian. l. vii. p. 294, 295,) and by Memnon of Heraclea, (apud Photium, cod. ccxxiv. p. 725,) though tacitly denied by Livy. 4. Theophrastus (A. U. C. 440) primus externorum aliqua de Romanis diligentius scripsit, (Plin. iii. 9.) 5. Lycophron (A. U. C. 480 — 500) scattered the first seed of a Trojan colony and the fable of the Aeneid, (Cassandra, 1226 — 1280.)
A bold prediction before the end of the first Punic war!
Note: Compare Niebuhr throughout. Niebuhr has written a dissertation (Kleine Schriften, i. p. 438,) arguing from this prediction, and on the other conclusive grounds, that the Lycophron, the author of the Cassandra, is not the Alexandrian poet. He had been anticipated in this sagacious criticism, as he afterwards discovered, by a writer of no less distinction than Charles James Fox. — Letters to Wakefield. And likewise by the author of the extraordinary translation of this poem, that most promising scholar, Lord Royston. See the Remains of Lord Royston, by the Rev. Henry Pepys, London, 1838.]
19 The tenth table, de modo sepulturae, was borrowed from Solon, (Cicero de Legibus, ii. 23 — 26:) the furtem per lancem et licium conceptum, is derived by Heineccius from the manners of Athens, (Antiquitat. Rom. tom. ii. p. 167 — 175.) The right of killing a nocturnal thief was declared by Moses, Solon, and the Decemvirs, (Exodus xxii. 3. Demosthenes contra Timocratem, tom. i. p. 736, edit. Reiske. Macrob. Saturnalia, l. i. c. 4. Collatio Legum Mosaicarum et Romanatum, tit, vii. No. i. p. 218, edit. Cannegieter.)
Note: Are not the same points of similarity discovered in the legislation of all actions in the infancy of their civilization? — W.]
Whatever might be the origin or the merit of the twelve tables, 20 they obtained among the Romans that blind and partial reverence which the lawyers of every country delight to bestow on their municipal institutions. The study is recommended by Cicero 21 as equally pleasant and instructive. “They amuse the mind by the remembrance of old words and the portrait of ancient manners; they inculcate the soundest principles of government and morals; and I am not afraid to affirm, that the brief composition of the Decemvirs surpasses in genuine value the libraries of Grecian philosophy. How admirable,” says Tully, with honest or affected prejudice, “is the wisdom of our ancestors! We alone are the masters of civil prudence, and our superiority is the more conspicuous, if we deign to cast our eyes on the rude and almost ridiculous jurisprudence of Draco, of Solon, and of Lycurgus.” The twelve tables were committed to the memory of the young and the meditation of the old; they were transcribed and illustrated with learned diligence; they had escaped the flames of the Gauls, they subsisted in the age of Justinian, and their subsequent loss has been imperfectly restored by the labors of modern critics. 22 But although these venerable monuments were considered as the rule of right and the fountain of justice, 23 they were overwhelmed by the weight and variety of new laws, which, at the end of five centuries, became a grievance more intolerable than the vices of the city. 24 Three thousand brass plates, the acts of the senate of the people, were deposited in the Capitol: 25 and some of the acts, as the Julian law against extortion, surpassed the number of a hundred chapters. 26 The Decemvirs had neglected to import the sanction of Zaleucus, which so long maintained the integrity of his republic. A Locrian, who proposed any new law, stood forth in the assembly of the people with a cord round his neck, and if the law was rejected, the innovator was instantly strangled.
20 It is the praise of Diodorus, tom. i. l. xii. p. 494,) which may be fairly translated by the eleganti atque absoluta brevitate verborum of Aulus Gellius, (Noct. Attic. xxi. 1.)]
21 Listen to Cicero (de Legibus, ii. 23) and his representative Crassus, (de Oratore, i. 43, 44.)]
22 See Heineccius, (Hist. J. R. No. 29 — 33.) I have followed the restoration of the xii. tables by Gravina (Origines J. C. p. 280 — 307) and Terrasson, (Hist. de la Jurisprudence Romaine, p. 94 — 205.)
Note: The wish expressed by Warnkonig, that the text and the conjectural emendations on the fragments of the xii. tables should be submitted to rigid criticism, has been fulfilled by Dirksen, Uebersicht der bisherigen Versuche Leipzig Kritik und Herstellung des Textes der Zwolf-Tafel-Fragmente, Leipzug, 1824. — M.]
23 Finis aequi juris, (Tacit. Annal. iii. 27.) Fons omnis publici et privati juris, (T. Liv. iii. 34.)
Note: From the context of the phrase in Tacitus, “Nam secutae leges etsi alquando in maleficos ex delicto; saepius tamen dissensione ordinum * * * latae sunt,” it is clear that Gibbon has rendered this sentence incorrectly. Hugo, Hist. p. 62. — M.]
24 De principiis juris, et quibus modis ad hanc multitudinem infinitam ac varietatem legum perventum sit altius disseram, (Tacit. Annal. iii. 25.) This deep disquisition fills only two pages, but they are the pages of Tacitus. With equal sense, but with less energy, Livy (iii. 34) had complained, in hoc immenso aliarum super alias acervatarum legum cumulo, &c.]
25 Suetonius in Vespasiano, c. 8.]
26 Cicero ad Familiares, viii. 8.]
The Decemvirs had been named, and their tables were approved, by an assembly of the centuries, in which riches preponderated against numbers. To the first class of Romans, the proprietors of one hundred thousand pounds of copper, 27 ninety-eight votes were assigned, and only ninety-five were left for the six inferior classes, distributed according to their substance by the artful policy of Servius. But the tribunes soon established a more specious and popular maxim, that every citizen has an equal right to enact the laws which he is bound to obey. Instead of the centuries, they convened the tribes; and the patricians, after an impotent struggle, submitted to the decrees of an assembly, in which their votes were confounded with those of the meanest plebeians. Yet as long as the tribes successively passed over narrow bridges 28 and gave their voices aloud, the conduct of each citizen was exposed to the eyes and ears of his friends and countrymen. The insolvent debtor consulted the wishes of his creditor; the client would have blushed to oppose the views of his patron; the general was followed by his veterans, and the aspect of a grave magistrate was a living lesson to the multitude. A new method of secret ballot abolished the influence of fear and shame, of honor and interest, and the abuse of freedom accelerated the progress of anarchy and despotism. 29 The Romans had aspired to be equal; they were levelled by the equality of servitude; and the dictates of Augustus were patiently ratified by the formal consent of the tribes or centuries. Once, and once only, he experienced a sincere and strenuous opposition. His subjects had resigned all political liberty; they defended the freedom of domestic life. A law which enforced the obligation, and strengthened the bonds of marriage, was clamorously rejected; Propertius, in the arms of Delia, applauded the victory of licentious love; and the project of reform was suspended till a new and more tractable generation had arisen in the world. 30 Such an example was not necessary to instruct a prudent usurper of the mischief of popular assemblies; and their abolition, which Augustus had silently prepared, was accomplished without resistance, and almost without notice, on the accession of his successor. 31 Sixty thousand plebeian legislators, whom numbers made formidable, and poverty secure, were supplanted by six hundred senators, who held their honors, their fortunes, and their lives, by the clemency of the emperor. The loss of executive power was alleviated by the gift of legislative authority; and Ulpian might assert, after the practice of two hundred years, that the decrees of the senate obtained the force and validity of laws. In the times of freedom, the resolves of the people had often been dictated by the passion or error of the moment: the Cornelian, Pompeian, and Julian laws were adapted by a single hand to the prevailing disorders; but the senate, under the reign of the Caesars, was composed of magistrates and lawyers, and in questions of private jurisprudence, the integrity of their judgment was seldom perverted by fear or interest. 32
27 Dionysius, with Arbuthnot, and most of the moderns, (except Eisenschmidt de Ponderibus, &c., p. 137 — 140,) represent the 100,000 asses by 10,000 Attic drachmae, or somewhat more than 300 pounds sterling. But their calculation can apply only to the latter times, when the as was diminished to 1-24th of its ancient weight: nor can I believe that in the first ages, however destitute of the precious metals, a single ounce of silver could have been exchanged for seventy pounds of copper or brass. A more simple and rational method is to value the copper itself according to the present rate, and, after comparing the mint and the market price, the Roman and avoirdupois weight, the primitive as or Roman pound of copper may be appreciated at one English shilling, and the 100,000 asses of the first class amounted to 5000 pounds sterling. It will appear from the same reckoning, that an ox was sold at Rome for five pounds, a sheep for ten shillings, and a quarter of wheat for one pound ten shillings, (Festus, p. 330, edit. Dacier. Plin. Hist. Natur. xviii. 4:) nor do I see any reason to reject these consequences, which moderate our ideas of the poverty of the first Romans.
Note: Compare Niebuhr, English translation, vol. i. p. 448, &c. — M.]
28 Consult the common writers on the Roman Comitia, especially Sigonius and Beaufort. Spanheim (de Praestantia et Usu Numismatum, tom. ii. dissert. x. p. 192, 193) shows, on a curious medal, the Cista, Pontes, Septa, Diribitor, &c.]
29 Cicero (de Legibus, iii. 16, 17, 18) debates this constitutional question, and assigns to his brother Quintus the most unpopular side.]
30 Prae tumultu recusantium perferre non potuit, (Sueton. in August. c. 34.) See Propertius, l. ii. eleg. 6. Heineccius, in a separate history, has exhausted the whole subject of the Julian and Papian Poppaean laws, (Opp. tom. vii. P. i. p. 1 — 479.)]
31 Tacit. Annal. i. 15. Lipsius, Excursus E. in Tacitum.
Note: This error of Gibbon has been long detected. The senate, under Tiberius did indeed elect the magistrates, who before that emperor were elected in the comitia. But we find laws enacted by the people during his reign, and that of Claudius. For example; the Julia-Norbana, Vellea, and Claudia de tutela foeminarum. Compare the Hist. du Droit Romain, by M. Hugo, vol. ii. p. 55, 57. The comitia ceased imperceptibly as the republic gradually expired. — W.]
32 Non ambigitur senatum jus facere posse, is the decision of Ulpian, (l. xvi. ad Edict. in Pandect. l. i. tit. iii. leg. 9.) Pomponius taxes the comitia of the people as a turba hominum, (Pandect. l. i. tit. ii. leg 9.)
Note: The author adopts the opinion, that under the emperors alone the senate had a share in the legislative power. They had nevertheless participated in it under the Republic, since senatus-consulta relating to civil rights have been preserved, which are much earlier than the reigns of Augustus or Tiberius. It is true that, under the emperors, the senate exercised this right more frequently, and that the assemblies of the people had become much more rare, though in law they were still permitted, in the time of Ulpian. (See the fragments of Ulpian.) Bach has clearly demonstrated that the senate had the same power in the time of the Republic. It is natural that the senatus-consulta should have been more frequent under the emperors, because they employed those means of flattering the pride of the senators, by granting them the right of deliberating on all affairs which did not intrench on the Imperial power. Compare the discussions of M. Hugo, vol. i. p. 284, et seq. — W.]
The silence or ambiguity of the laws was supplied by the occasional edicts † of those magistrates who were invested with the honors of the state. 33 This ancient prerogative of the Roman kings was transferred, in their respective offices, to the consuls and dictators, the censors and praetors; and a similar right was assumed by the tribunes of the people, the ediles, and the proconsuls. At Rome, and in the provinces, the duties of the subject, and the intentions of the governor, were proclaimed; and the civil jurisprudence was reformed by the annual edicts of the supreme judge, the praetor of the city. * As soon as he ascended his tribunal, he announced by the voice of the crier, and afterwards inscribed on a white wall, the rules which he proposed to follow in the decision of doubtful cases, and the relief which his equity would afford from the precise rigor of ancient statutes. A principle of discretion more congenial to monarchy was introduced into the republic: the art of respecting the name, and eluding the efficacy, of the laws, was improved by successive praetors; subtleties and fictions were invented to defeat the plainest meaning of the Decemvirs, and where the end was salutary, the means were frequently absurd. The secret or probable wish of the dead was suffered to prevail over the order of succession and the forms of testaments; and the claimant, who was excluded from the character of heir, accepted with equal pleasure from an indulgent praetor the possession of the goods of his late kinsman or benefactor. In the redress of private wrongs, compensations and fines were substituted to the obsolete rigor of the Twelve Tables; time and space were annihilated by fanciful suppositions; and the plea of youth, or fraud, or violence, annulled the obligation, or excused the performance, of an inconvenient contract. A jurisdiction thus vague and arbitrary was exposed to the most dangerous abuse: the substance, as well as the form, of justice were often sacrificed to the prejudices of virtue, the bias of laudable affection, and the grosser seductions of interest or resentment. But the errors or vices of each praetor expired with his annual office; such maxims alone as had been approved by reason and practice were copied by succeeding judges; the rule of proceeding was defined by the solution of new cases; and the temptations of injustice were removed by the Cornelian law, which compelled the praetor of the year to adhere to the spirit and letter of his first proclamation. 34 It was reserved for the curiosity and learning of Adrian, to accomplish the design which had been conceived by the genius of Caesar; and the praetorship of Salvius Julian, an eminent lawyer, was immortalized by the composition of the Perpetual Edict. This well-digested code was ratified by the emperor and the senate; the long divorce of law and equity was at length reconciled; and, instead of the Twelve Tables, the perpetual edict was fixed as the invariable standard of civil jurisprudence. 35
† There is a curious passage from Aurelius, a writer on Law, on the Praetorian Praefect, quoted in Lydus de Magistratibus, p. 32, edit. Hase. The Praetorian praefect was to the emperor what the master of the horse was to the dictator under the Republic. He was the delegate, therefore, of the full Imperial authority; and no appeal could be made or exception taken against his edicts. I had not observed this passage, when the third volume, where it would have been more appropriately placed, passed through the press. — M]
33 The jus honorarium of the praetors and other magistrates is strictly defined in the Latin text to the Institutes, (l. i. tit. ii. No. 7,) and more loosely explained in the Greek paraphrase of Theophilus, (p. 33 — 38, edit. Reitz,) who drops the important word honorarium.
Note: The author here follows the opinion of Heineccius, who, according to the idea of his master Thomasius, was unwilling to suppose that magistrates exercising a judicial could share in the legislative power. For this reason he represents the edicts of the praetors as absurd. (See his work, Historia Juris Romani, 69, 74.) But Heineccius had altogether a false notion of this important institution of the Romans, to which we owe in a great degree the perfection of their jurisprudence. Heineccius, therefore, in his own days had many opponents of his system, among others the celebrated Ritter, professor at Wittemberg, who contested it in notes appended to the work of Heineccius, and retained in all subsequent editions of that book. After Ritter, the learned Bach undertook to vindicate the edicts of the praetors in his Historia Jurisprud. Rom. edit. 6, p. 218, 224. But it remained for a civilian of our own days to throw light on the spirit and true character of this institution. M. Hugo has completely demonstrated that the praetorian edicts furnished the salutary means of perpetually harmonizing the legislation with the spirit of the times. The praetors were the true organs of public opinion. It was not according to their caprice that they framed their regulations, but according to the manners and to the opinions of the great civil lawyers of their day. We know from Cicero himself, that it was esteemed a great honor among the Romans to publish an edict, well conceived and well drawn. The most distinguished lawyers of Rome were invited by the praetor to assist in framing this annual law, which, according to its principle, was only a declaration which the praetor made to the public, to announce the manner in which he would judge, and to guard against every charge of partiality. Those who had reason to fear his opinions might delay their cause till the following year.
The praetor was responsible for all the faults which he committed. The tribunes could lodge an accusation against the praetor who issued a partial edict. He was bound strictly to follow and to observe the regulations published by him at the commencement of his year of office, according to the Cornelian law, by which these edicts were called perpetual, and he could make no change in a regulation once published. The praetor was obliged to submit to his own edict, and to judge his own affairs according to its provisions. These magistrates had no power of departing from the fundamental laws, or the laws of the Twelve Tables. The people held them in such consideration, that they rarely enacted laws contrary to their provisions; but as some provisions were found inefficient, others opposed to the manners of the people, and to the spirit of subsequent ages, the praetors, still maintaining respect for the laws, endeavored to bring them into accordance with the necessities of the existing time, by such fictions as best suited the nature of the case. In what legislation do we not find these fictions, which even yet exist, absurd and ridiculous as they are, among the ancient laws of modern nations? These always variable edicts at length comprehended the whole of the Roman legislature, and became the subject of the commentaries of the most celebrated lawyers. They must therefore be considered as the basis of all the Roman jurisprudence comprehended in the Digest of Justinian.
It is in this sense that M. Schrader has written on this important institution, proposing it for imitation as far as may be consistent with our manners, and agreeable to our political institutions, in order to avoid immature legislation becoming a permanent evil. See the History of the Roman Law by M. Hugo, vol. i. p. 296, &c., vol. ii. p. 30, et seq., 78. et seq., and the note in my elementary book on the Industries, p. 313. With regard to the works best suited to give information on the framing and the form of these edicts, see Haubold, Institutiones Literariae, tom. i. p. 321, 368.
All that Heineccius says about the usurpation of the right of making these edicts by the praetors is false, and contrary to all historical testimony. A multitude of authorities proves that the magistrates were under an obligation to publish these edicts. — W.
With the utmost deference for these excellent civilians, I cannot but consider this confusion of the judicial and legislative authority as a very perilous constitutional precedent. It might answer among a people so singularly trained as the Romans were by habit and national character in reverence for legal institutions, so as to be an aristocracy, if not a people, of legislators; but in most nations the investiture of a magistrate in such authority, leaving to his sole judgment the lawyers he might consult, and the view of public opinion which he might take, would be a very insufficient guaranty for right legislation. — M.]
* Compare throughout the brief but admirable sketch of the progress and growth of the Roman jurisprudence, the necessary operation of the jusgentium, when Rome became the sovereign of nations, upon the jus civile of the citizens of Rome, in the first chapter of Savigny. Geschichte des Romischen Rechts im Mittelalter. — M.]
34 Dion Cassius (tom. i. l. xxxvi. p. 100) fixes the perpetual edicts in the year of Rome, 686. Their institution, however, is ascribed to the year 585 in the Acta Diurna, which have been published from the papers of Ludovicus Vives. Their authenticity is supported or allowed by Pighius, (Annal. Rom. tom. ii. p. 377, 378,) Graevius, (ad Sueton. p. 778,) Dodwell, (Praelection. Cambden, p. 665,) and Heineccius: but a single word, Scutum Cimbricum, detects the forgery, (Moyle’s Works, vol. i. p. 303.)]
35 The history of edicts is composed, and the text of the perpetual edict is restored, by the master-hand of Heineccius, (Opp. tom. vii. P. ii. p. 1 — 564;) in whose researches I might safely acquiesce. In the Academy of Inscriptions, M. Bouchaud has given a series of memoirs to this interesting subject of law and literature.
Note: This restoration was only the commencement of a work found among the papers of Heineccius, and published after his death. — G.]
Note: Gibbon has here fallen into an error, with Heineccius, and almost the whole literary world, concerning the real meaning of what is called the perpetual edict of Hadrian. Since the Cornelian law, the edicts were perpetual, but only in this sense, that the praetor could not change them during the year of his magistracy. And although it appears that under Hadrian, the civilian Julianus made, or assisted in making, a complete collection of the edicts, (which certainly had been done likewise before Hadrian, for example, by Ofilius, qui diligenter edictum composuit,) we have no sufficient proof to admit the common opinion, that the Praetorian edict was declared perpetually unalterable by Hadrian. The writers on law subsequent to Hadrian (and among the rest Pomponius, in his Summary of the Roman Jurisprudence) speak of the edict as it existed in the time of Cicero. They would not certainly have passed over in silence so remarkable a change in the most important source of the civil law. M. Hugo has conclusively shown that the various passages in authors, like Eutropius, are not sufficient to establish the opinion introduced by Heineccius. Compare Hugo, vol. ii. p. 78. A new proof of this is found in the Institutes of Gaius, who, in the first books of his work, expresses himself in the same manner, without mentioning any change made by Hadrian. Nevertheless, if it had taken place, he must have noticed it, as he does l. i. 8, the responsa prudentum, on the occasion of a rescript of Hadrian. There is no lacuna in the text. Why then should Gaius maintain silence concerning an innovation so much more important than that of which he speaks? After all, this question becomes of slight interest, since, in fact, we find no change in the perpetual edict inserted in the Digest, from the time of Hadrian to the end of that epoch, except that made by Julian, (compare Hugo, l. c.) The latter lawyers appear to follow, in their commentaries, the same texts as their predecessors. It is natural to suppose, that, after the labors of so many men distinguished in jurisprudence, the framing of the edict must have attained such perfection that it would have been difficult to have made any innovation. We nowhere find that the jurists of the Pandects disputed concerning the words, or the drawing up of the edict.
What difference would, in fact, result from this with regard to our codes, and our modern legislation? Compare the learned Dissertation of M. Biener, De Salvii Juliani meritis in Edictum Praetorium recte aestimandis. Lipsae, 1809, 4to. — W.]
From Augustus to Trajan, the modest Caesars were content to promulgate their edicts in the various characters of a Roman magistrate; * and, in the decrees of the senate, the epistles and orations of the prince were respectfully inserted. Adrian 36 appears to have been the first who assumed, without disguise, the plenitude of legislative power. And this innovation, so agreeable to his active mind, was countenanced by the patience of the times, and his long absence from the seat of government. The same policy was embraced by succeeding monarchs, and, according to the harsh metaphor of Tertullian, “the gloomy and intricate forest of ancient laws was cleared away by the axe of royal mandates and constitutions.” 37 During four centuries, from Adrian to Justinian the public and private jurisprudence was moulded by the will of the sovereign; and few institutions, either human or divine, were permitted to stand on their former basis. The origin of Imperial legislation was concealed by the darkness of ages and the terrors of armed despotism; and a double tiction was propagated by the servility, or perhaps the ignorance, of the civilians, who basked in the sunshine of the Roman and Byzantine courts. 1. To the prayer of the ancient Caesars, the people or the senate had sometimes granted a personal exemption from the obligation and penalty of particular statutes; and each indulgence was an act of jurisdiction exercised by the republic over the first of her citizens. His humble privilege was at length transformed into the prerogative of a tyrant; and the Latin expression of “released from the laws” 38 was supposed to exalt the emperor above all human restraints, and to leave his conscience and reason as the sacred measure of his conduct. 2. A similar dependence was implied in the decrees of the senate, which, in every reign, defined the titles and powers of an elective magistrate. But it was not before the ideas, and even the language, of the Romans had been corrupted, that a royal law, 39 and an irrevocable gift of the people, were created by the fancy of Ulpian, or more probably of Tribonian himself; 40 and the origin of Imperial power, though false in fact, and slavish in its consequence, was supported on a principle of freedom and justice. “The pleasure of the emperor has the vigor and effect of law, since the Roman people, by the royal law, have transferred to their prince the full extent of their own power and sovereignty.” 41 The will of a single man, of a child perhaps, was allowed to prevail over the wisdom of ages and the inclinations of millions; and the degenerate Greeks were proud to declare, that in his hands alone the arbitrary exercise of legislation could be safely deposited. “What interest or passion,” exclaims Theophilus in the court of Justinian, “can reach the calm and sublime elevation of the monarch? He is already master of the lives and fortunes of his subjects; and those who have incurred his displeasure are already numbered with the dead.” 42 Disdaining the language of flattery, the historian may confess, that in questions of private jurisprudence, the absolute sovereign of a great empire can seldom be influenced by any personal considerations. Virtue, or even reason, will suggest to his impartial mind, that he is the guardian of peace and equity, and that the interest of society is inseparably connected with his own. Under the weakest and most vicious reign, the seat of justice was filled by the wisdom and integrity of Papinian and Ulpian; 43 and the purest materials of the Code and Pandects are inscribed with the names of Caracalla and his ministers. 44 The tyrant of Rome was sometimes the benefactor of the provinces. A dagger terminated the crimes of Domitian; but the prudence of Nerva confirmed his acts, which, in the joy of their deliverance, had been rescinded by an indignant senate. 45 Yet in the rescripts, 46 replies to the consultations of the magistrates, the wisest of princes might be deceived by a partial exposition of the case. And this abuse, which placed their hasty decisions on the same level with mature and deliberate acts of legislation, was ineffectually condemned by the sense and example of Trajan. The rescripts of the emperor, his grants and decrees, his edicts and pragmatic sanctions, were subscribed in purple ink, 47 and transmitted to the provinces as general or special laws, which the magistrates were bound to execute, and the people to obey. But as their number continually multiplied, the rule of obedience became each day more doubtful and obscure, till the will of the sovereign was fixed and ascertained in the Gregorian, the Hermogenian, and the Theodosian codes. * The two first, of which some fragments have escaped, were framed by two private lawyers, to preserve the constitutions of the Pagan emperors from Adrian to Constantine. The third, which is still extant, was digested in sixteen books by the order of the younger Theodosius to consecrate the laws of the Christian princes from Constantine to his own reign. But the three codes obtained an equal authority in the tribunals; and any act which was not included in the sacred deposit might be disregarded by the judge as epurious or obsolete. 48
* It is an important question in what manner the emperors were invested with this legislative power. The newly discovered Gaius distinctly states that it was in virtue of a law — Nec unquam dubitatum est, quin id legis vicem obtineat, cum ipse imperator per legem imperium accipiat. But it is still uncertain whether this was a general law, passed on the transition of the government from a republican to a monarchical form, or a law passed on the accession of each emperor. Compare Hugo, Hist. du Droit Romain, (French translation,) vol. ii. p. 8. — M.]
36 His laws are the first in the code. See Dodwell, (Praelect. Cambden, p. 319 — 340,) who wanders from the subject in confused reading and feeble paradox.
Note: This is again an error which Gibbon shares with Heineccius, and the generality of authors. It arises from having mistaken the insignificant edict of Hadrian, inserted in the Code of Justinian, (lib. vi, tit. xxiii. c. 11,) for the first constitutio principis, without attending to the fact, that the Pandects contain so many constitutions of the emperors, from Julius Caesar, (see l. i. Digest 29, l) M. Hugo justly observes, that the acta of Sylla, approved by the senate, were the same thing with the constitutions of those who after him usurped the sovereign power. Moreover, we find that Pliny, and other ancient authors, report a multitude of rescripts of the emperors from the time of Augustus. See Hugo, Hist. du Droit Romain, vol. ii. p. 24-27. — W.]
37 Totam illam veterem et squalentem sylvam legum novis principalium rescriptorum et edictorum securibus truncatis et caeditis; (Apologet. c. 4, p. 50, edit. Havercamp.) He proceeds to praise the recent firmness of Severus, who repealed the useless or pernicious laws, without any regard to their age or authority.]
38 The constitutional style of Legibus Solutus is misinterpreted by the art or ignorance of Dion Cassius, (tom. i. l. liii. p. 713.) On this occasion, his editor, Reimer, joins the universal censure which freedom and criticism have pronounced against that slavish historian.]
39 The word (Lex Regia) was still more recent than the thing. The slaves of Commodus or Caracalla would have started at the name of royalty.
Note: Yet a century before, Domitian was called not only by Martial but even in public documents, Dominus et Deus Noster. Sueton. Domit. cap. 13. Hugo. — W.]
40 See Gravina (Opp. p. 501 — 512) and Beaufort, (Republique Romaine, tom. i. p. 255 — 274.) He has made a proper use of two dissertations by John Frederic Gronovius and Noodt, both translated, with valuable notes, by Barbeyrac, 2 vols. in 12mo. 1731.]
41 Institut. l. i. tit. ii. No. 6. Pandect. l. i. tit. iv. leg. 1. Cod. Justinian, l. i. tit. xvii. leg. 1, No. 7. In his Antiquities and Elements, Heineccius has amply treated de constitutionibus principum, which are illustrated by Godefroy (Comment. ad Cod. Theodos. l. i. tit. i. ii. iii.) and Gravina, (p. 87 — 90.)
Note: Gaius asserts that the Imperial edict or rescript has and always had, the force of law, because the Imperial authority rests upon law. Constitutio principis est, quod imperator decreto vel edicto, vel epistola constituit, nee unquam dubitatum, quin id legis, vicem obtineat, cum ipse imperator per legem imperium accipiat. Gaius, 6 Instit. i. 2. — M.]
42 Theophilus, in Paraphras. Graec. Institut. p. 33, 34, edit. Reitz For his person, time, writings, see the Theophilus of J. H. Mylius, Excurs. iii. p. 1034 — 1073.]
43 There is more envy than reason in the complaint of Macrinus (Jul. Capitolin. c. 13:) Nefas esse leges videri Commodi et Caracalla at hominum imperitorum voluntates. Commodus was made a Divus by Severus, (Dodwell, Praelect. viii. p. 324, 325.) Yet he occurs only twice in the Pandects.]
44 Of Antoninus Caracalla alone 200 constitutions are extant in the Code, and with his father 160. These two princes are quoted fifty times in the Pandects, and eight in the Institutes, (Terasson, p. 265.)]
45 Plin. Secund. Epistol. x. 66. Sueton. in Domitian. c. 23.]
46 It was a maxim of Constantine, contra jus rescripta non valeant, (Cod. Theodos. l. i. tit. ii. leg. 1.) The emperors reluctantly allow some scrutiny into the law and the fact, some delay, petition, &c.; but these insufficient remedies are too much in the discretion and at the peril of the judge.]
47 A compound of vermilion and cinnabar, which marks the Imperial diplomas from Leo I. (A.D. 470) to the fall of the Greek empire, (Bibliotheque Raisonnee de la Diplomatique, tom. i. p. 504 — 515 Lami, de Eruditione Apostolorum, tom. ii. p. 720 — 726.)]
* Savigny states the following as the authorities for the Roman law at the commencement of the fifth century:—
1. The writings of the jurists, according to the regulations of the Constitution of Valentinian III., first promulgated in the West, but by its admission into the Theodosian Code established likewise in the East. (This Constitution established the authority of the five great jurists, Papinian, Paulus, Caius, Ulpian, and Modestinus as interpreters of the ancient law. * * * In case of difference of opinion among these five, a majority decided the case; where they were equal, the opinion of Papinian, where he was silent, the judge; but see p. 40, and Hugo, vol. ii. p. 89.)
2. The Gregorian and Hermogenian Collection of the Imperial Rescripts. 3. The Code of Theodosius II.
4. The particular Novellae, as additions and Supplements to this Code Savigny. vol. i. p 10. — M.]
48 Schulting, Jurisprudentia Ante-Justinianea, p. 681 — 718. Cujacius assigned to Gregory the reigns from Hadrian to Gallienus. and the continuation to his fellow-laborer Hermogenes.
This general division may be just, but they often trespassed on each other’s ground]
Among savage nations, the want of letters is imperfectly supplied by the use of visible signs, which awaken attention, and perpetuate the remembrance of any public or private transaction. The jurisprudence of the first Romans exhibited the scenes of a pantomime; the words were adapted to the gestures, and the slightest error or neglect in the forms of proceeding was sufficient to annul the substance of the fairest claim. The communion of the marriage — life was denoted by the necessary elements of fire and water; 49 and the divorced wife resigned the bunch of keys, by the delivery of which she had been invested with the government of the family. The manumission of a son, or a slave, was performed by turning him round with a gentle blow on the cheek; a work was prohibited by the casting of a stone; prescription was interrupted by the breaking of a branch; the clinched fist was the symbol of a pledge or deposit; the right hand was the gift of faith and confidence. The indenture of covenants was a broken straw; weights and scales were introduced into every payment, and the heir who accepted a testament was sometimes obliged to snap his fingers, to cast away his garments, and to leap or dance with real or affected transport. 50 If a citizen pursued any stolen goods into a neighbor’s house, he concealed his nakedness with a linen towel, and hid his face with a mask or basin, lest he should encounter the eyes of a virgin or a matron. 51 In a civil action the plaintiff touched the ear of his witness, seized his reluctant adversary by the neck, and implored, in solemn lamentation, the aid of his fellow-citizens. The two competitors grasped each other’s hand as if they stood prepared for combat before the tribunal of the praetor; he commanded them to produce the object of the dispute; they went, they returned with measured steps, and a clod of earth was cast at his feet to represent the field for which they contended. This occult science of the words and actions of law was the inheritance of the pontiffs and patricians. Like the Chaldean astrologers, they announced to their clients the days of business and repose; these important trifles were interwoven with the religion of Numa; and after the publication of the Twelve Tables, the Roman people was still enslaved by the ignorance of judicial proceedings. The treachery of some plebeian officers at length revealed the profitable mystery: in a more enlightened age, the legal actions were derided and observed; and the same antiquity which sanctified the practice, obliterated the use and meaning of this primitive language. 52
49 Scaevola, most probably Q. Cervidius Scaevola; the master of Papinian considers this acceptance of fire and water as the essence of marriage, (Pandect. l. xxiv. tit. 1, leg. 66. See Heineccius, Hist. J. R. No. 317.)]
50 Cicero (de Officiis, iii. 19) may state an ideal case, but St. Am brose (de Officiis, iii. 2,) appeals to the practice of his own times, which he understood as a lawyer and a magistrate, (Schulting ad Ulpian, Fragment. tit. xxii. No. 28, p. 643, 644.)
Note: In this passage the author has endeavored to collect all the examples of judicial formularies which he could find. That which he adduces as the form of cretio haereditatis is absolutely false. It is sufficient to glance at the passage in Cicero which he cites, to see that it has no relation to it. The author appeals to the opinion of Schulting, who, in the passage quoted, himself protests against the ridiculous and absurd interpretation of the passage in Cicero, and observes that Graevius had already well explained the real sense. See in Gaius the form of cretio haereditatis Inst. l. ii. p. 166. — W.]
51 The furtum lance licioque conceptum was no longer understood in the time of the Antonines, (Aulus Gellius, xvi. 10.) The Attic derivation of Heineccius, (Antiquitat. Rom. l. iv. tit. i. No. 13 — 21) is supported by the evidence of Aristophanes, his scholiast, and Pollux.
Note: Nothing more is known of this ceremony; nevertheless we find that already in his own days Gaius turned it into ridicule. He says, (lib. iii. et p. 192, Sections 293,) prohibiti actio quadrupli ex edicto praetoris introducta est; lex autem eo nomine nullam poenam constituit. Hoc solum praecepit, ut qui quaerere velit, nudus quaerat, linteo cinctus, lancem habens; qui si quid invenerit. jubet id lex furtum manifestum esse. Quid sit autem linteum? quaesitum est. Sed verius est consuti genus esse, quo necessariae partes tegerentur. Quare lex tota ridicula est. Nam qui vestitum quaerere prohibet, is et nudum quaerere prohibiturus est; eo magis, quod invenerit ibi imponat, neutrum eorum procedit, si id quod quaeratur, ejus magnitudinis aut naturae sit ut neque subjici, neque ibi imponi possit. Certe non dubitatur, cujuscunque materiae sit ea lanx, satis legi fieri. We see moreover, from this passage, that the basin, as most authors, resting on the authority of Festus, have supposed, was not used to cover the figure. — W. Gibbon says the face, though equally inaccurately. This passage of Gaius, I must observe, as well as others in M. Warnkonig’s work, is very inaccurately printed. — M.]
52 In his Oration for Murena, (c. 9 — 13,) Cicero turns into ridicule the forms and mysteries of the civilians, which are represented with more candor by Aulus Gellius, (Noct. Attic. xx. 10,) Gravina, (Opp p. 265, 266, 267,) and Heineccius, (Antiquitat. l. iv. tit. vi.)
Note: Gibbon had conceived opinions too decided against the forms of procedure in use among the Romans. Yet it is on these solemn forms that the certainty of laws has been founded among all nations. Those of the Romans were very intimately allied with the ancient religion, and must of necessity have disappeared as Rome attained a higher degree of civilization. Have not modern nations, even the most civilized, overloaded their laws with a thousand forms, often absurd, almost always trivial? How many examples are afforded by the English law! See, on the nature of these forms, the work of M. de Savigny on the Vocation of our Age for Legislation and Jurisprudence, Heidelberg, 1814, p. 9, 10. — W. This work of M. Savigny has been translated into English by Mr. Hayward. — M.]
A more liberal art was cultivated, however, by the sage of Rome, who, in a stricter sense, may be considered as the authors of the civil law. The alteration of the idiom and manners of the Romans rendered the style of the Twelve Tables less familiar to each rising generation, and the doubtful passages were imperfectly explained by the study of legal antiquarians. To define the ambiguities, to circumscribe the latitude, to apply the principles, to extend the consequences, to reconcile the real or apparent contradictions, was a much nobler and more important task; and the province of legislation was silently invaded by the expounders of ancient statutes. Their subtle interpretations concurred with the equity of the praetor, to reform the tyranny of the darker ages: however strange or intricate the means, it was the aim of artificial jurisprudence to restore the simple dictates of nature and reason, and the skill of private citizens was usefully employed to undermine the public institutions of their country. † The revolution of almost one thousand years, from the Twelve Tables to the reign of Justinian, may be divided into three periods, almost equal in duration, and distinguished from each other by the mode of instruction and the character of the civilians. 53 Pride and ignorance contributed, during the first period, to confine within narrow limits the science of the Roman law. On the public days of market or assembly, the masters of the art were seen walking in the forum ready to impart the needful advice to the meanest of their fellow-citizens, from whose votes, on a future occasion, they might solicit a grateful return. As their years and honors increased, they seated themselves at home on a chair or throne, to expect with patient gravity the visits of their clients, who at the dawn of day, from the town and country, began to thunder at their door. The duties of social life, and the incidents of judicial proceeding, were the ordinary subject of these consultations, and the verbal or written opinion of the juris-consults was framed according to the rules of prudence and law. The youths of their own order and family were permitted to listen; their children enjoyed the benefit of more private lessons, and the Mucian race was long renowned for the hereditary knowledge of the civil law. The second period, the learned and splendid age of jurisprudence, may be extended from the birth of Cicero to the reign of Severus Alexander. A system was formed, schools were instituted, books were composed, and both the living and the dead became subservient to the instruction of the student. The tripartite of Aelius Paetus, surnamed Catus, or the Cunning, was preserved as the oldest work of Jurisprudence. Cato the censor derived some additional fame from his legal studies, and those of his son: the kindred appellation of Mucius Scaevola was illustrated by three sages of the law; but the perfection of the science was ascribed to Servius Sulpicius, their disciple, and the friend of Tully; and the long succession, which shone with equal lustre under the republic and under the Caesars, is finally closed by the respectable characters of Papinian, of Paul, and of Ulpian. Their names, and the various titles of their productions, have been minutely preserved, and the example of Labeo may suggest some idea of their diligence and fecundity. That eminent lawyer of the Augustan age divided the year between the city and country, between business and composition; and four hundred books are enumerated as the fruit of his retirement. Of the collection of his rival Capito, the two hundred and fifty-ninth book is expressly quoted; and few teachers could deliver their opinions in less than a century of volumes. In the third period, between the reigns of Alexander and Justinian, the oracles of jurisprudence were almost mute. The measure of curiosity had been filled: the throne was occupied by tyrants and Barbarians, the active spirits were diverted by religious disputes, and the professors of Rome, Constantinople, and Berytus, were humbly content to repeat the lessons of their more enlightened predecessors. From the slow advances and rapid decay of these legal studies, it may be inferred, that they require a state of peace and refinement. From the multitude of voluminous civilians who fill the intermediate space, it is evident that such studies may be pursued, and such works may be performed, with a common share of judgment, experience, and industry. The genius of Cicero and Virgil was more sensibly felt, as each revolving age had been found incapable of producing a similar or a second: but the most eminent teachers of the law were assured of leaving disciples equal or superior to themselves in merit and reputation.
† Compare, on the Responsa Prudentum, Warnkonig, Histoire Externe du Droit Romain Bruxelles, 1836, p. 122. — M.]
53 The series of the civil lawyers is deduced by Pomponius, (de Origine Juris Pandect. l. i. tit. ii.) The moderns have discussed, with learning and criticism, this branch of literary history; and among these I have chiefly been guided by Gravina (p. 41 — 79) and Hei neccius, (Hist. J. R. No. 113 — 351.) Cicero, more especially in his books de Oratore, de Claris Oratoribus, de Legibus, and the Clavie Ciceroniana of Ernesti (under the names of Mucius, &c.) afford much genuine and pleasing information. Horace often alludes to the morning labors of the civilians, (Serm. I. i. 10, Epist. II. i. 103, &c)
Agricolam laudat juris legumque peritus Sub galli cantum, consultor ubi ostia pulsat.
Romae dulce diu fuit et solemne, reclusa Mane domo vigilare, clienti promere jura.
Note: It is particularly in this division of the history of the Roman jurisprudence into epochs, that Gibbon displays his profound knowledge of the laws of this people. M. Hugo, adopting this division, prefaced these three periods with the history of the times anterior to the Law of the Twelve Tables, which are, as it were, the infancy of the Roman law. — W]
The jurisprudence which had been grossly adapted to the wants of the first Romans, was polished and improved in the seventh century of the city, by the alliance of Grecian philosophy. The Scaevolas had been taught by use and experience; but Servius Sulpicius * was the first civilian who established his art on a certain and general theory. 54 For the discernment of truth and falsehood he applied, as an infallible rule, the logic of Aristotle and the stoics, reduced particular cases to general principles, and diffused over the shapeless mass the light of order and eloquence. Cicero, his contemporary and friend, declined the reputation of a professed lawyer; but the jurisprudence of his country was adorned by his incomparable genius, which converts into gold every object that it touches. After the example of Plato, he composed a republic; and, for the use of his republic, a treatise of laws; in which he labors to deduce from a celestial origin the wisdom and justice of the Roman constitution. The whole universe, according to his sublime hypothesis, forms one immense commonwealth: gods and men, who participate of the same essence, are members of the same community; reason prescribes the law of nature and nations; and all positive institutions, however modified by accident or custom, are drawn from the rule of right, which the Deity has inscribed on every virtuous mind. From these philosophical mysteries, he mildly excludes the sceptics who refuse to believe, and the epicureans who are unwilling to act. The latter disdain the care of the republic: he advises them to slumber in their shady gardens. But he humbly entreats that the new academy would be silent, since her bold objections would too soon destroy the fair and well ordered structure of his lofty system. 55 Plato, Aristotle, and Zeno, he represents as the only teachers who arm and instruct a citizen for the duties of social life. Of these, the armor of the stoics 56 was found to be of the firmest temper; and it was chiefly worn, both for use and ornament, in the schools of jurisprudence. From the portico, the Roman civilians learned to live, to reason, and to die: but they imbibed in some degree the prejudices of the sect; the love of paradox, the pertinacious habits of dispute, and a minute attachment to words and verbal distinctions. The superiority of form to matter was introduced to ascertain the right of property: and the equality of crimes is countenanced by an opinion of Trebatius, 57 that he who touches the ear, touches the whole body; and that he who steals from a heap of corn, or a hogshead of wine, is guilty of the entire theft. 58
* M. Hugo thinks that the ingenious system of the Institutes adopted by a great number of the ancient lawyers, and by Justinian himself, dates from Severus Sulpicius. Hist du Droit Romain, vol.iii.p. 119. — W.]
54 Crassus, or rather Cicero himself, proposes (de Oratore, i. 41, 42) an idea of the art or science of jurisprudence, which the eloquent, but illiterate, Antonius (i. 58) affects to deride. It was partly executed by Servius Sulpicius, (in Bruto, c. 41,) whose praises are elegantly varied in the classic Latinity of the Roman Gravina, (p. 60.)]
55 Perturbatricem autem omnium harum rerum academiam, hanc ab Arcesila et Carneade recentem, exoremus ut sileat, nam si invaserit in haec, quae satis scite instructa et composita videantur, nimis edet ruinas, quam quidem ego placare cupio, submovere non audeo. (de Legibus, i. 13.) From this passage alone, Bentley (Remarks on Free-thinking, p. 250) might have learned how firmly Cicero believed in the specious doctrines which he has adorned.]
56 The stoic philosophy was first taught at Rome by Panaetius, the friend of the younger Scipio, (see his life in the Mem. de l’Academis des Inscriptions, tom. x. p. 75 — 89.)]
57 As he is quoted by Ulpian, (leg.40, 40, ad Sabinum in Pandect. l. xlvii. tit. ii. leg. 21.) Yet Trebatius, after he was a leading civilian, que qui familiam duxit, became an epicurean, (Cicero ad Fam. vii. 5.) Perhaps he was not constant or sincere in his new sect.
Note: Gibbon had entirely misunderstood this phrase of Cicero. It was only since his time that the real meaning of the author was apprehended. Cicero, in enumerating the qualifications of Trebatius, says, Accedit etiam, quod familiam ducit in jure civili, singularis memoria, summa scientia, which means that Trebatius possessed a still further most important qualification for a student of civil law, a remarkable memory, &c. This explanation, already conjectured by G. Menage, Amaenit. Juris Civilis, c. 14, is found in the dictionary of Scheller, v. Familia, and in the History of the Roman Law by M. Hugo. Many authors have asserted, without any proof sufficient to warrant the conjecture, that Trebatius was of the school of Epicurus — W.]
58 See Gravina (p. 45 — 51) and the ineffectual cavils of Mascou. Heineccius (Hist. J. R. No. 125) quotes and approves a dissertation of Everard Otto, de Stoica Jurisconsultorum Philosophia.]
Arms, eloquence, and the study of the civil law, promoted a citizen to the honors of the Roman state; and the three professions were sometimes more conspicuous by their union in the same character. In the composition of the edict, a learned praetor gave a sanction and preference to his private sentiments; the opinion of a censor, or a counsel, was entertained with respect; and a doubtful interpretation of the laws might be supported by the virtues or triumphs of the civilian. The patrician arts were long protected by the veil of mystery; and in more enlightened times, the freedom of inquiry established the general principles of jurisprudence. Subtile and intricate cases were elucidated by the disputes of the forum: rules, axioms, and definitions, 59 were admitted as the genuine dictates of reason; and the consent of the legal professors was interwoven into the practice of the tribunals. But these interpreters could neither enact nor execute the laws of the republic; and the judges might disregard the authority of the Scaevolas themselves, which was often overthrown by the eloquence or sophistry of an ingenious pleader. 60 Augustus and Tiberius were the first to adopt, as a useful engine, the science of the civilians; and their servile labors accommodated the old system to the spirit and views of despotism. Under the fair pretence of securing the dignity of the art, the privilege of subscribing legal and valid opinions was confined to the sages of senatorian or equestrian rank, who had been previously approved by the judgment of the prince; and this monopoly prevailed, till Adrian restored the freedom of the profession to every citizen conscious of his abilities and knowledge. The discretion of the praetor was now governed by the lessons of his teachers; the judges were enjoined to obey the comment as well as the text of the law; and the use of codicils was a memorable innovation, which Augustus ratified by the advice of the civilians. 61 *
59 We have heard of the Catonian rule, the Aquilian stipulation, and the Manilian forms, of 211 maxims, and of 247 definitions, (Pandect. l. i. tit. xvi. xvii.)]
60 Read Cicero, l. i. de Oratore, Topica, pro Murena.]
61 See Pomponius, (de Origine Juris Pandect. l. i. tit. ii. leg. 2, No 47,) Heineccius, (ad Institut. l. i. tit. ii. No. 8, l. ii. tit. xxv. in Element et Antiquitat.,) and Gravina, (p. 41 — 45.) Yet the monopoly of Augustus, a harsh measure, would appear with some softening in contemporary evidence; and it was probably veiled by a decree of the senate]
* The author here follows the then generally received opinion of Heineccius. The proofs which appear to confirm it are l. 2, 47, D. I. 2, and 8. Instit. I. 2. The first of these passages speaks expressly of a privilege granted to certain lawyers, until the time of Adrian, publice respondendi jus ante Augusti tempora non dabatur. Primus Divus Augustus, ut major juris auctoritas haberetur, constituit, ut ex auctoritate ejus responderent. The passage of the Institutes speaks of the different opinions of those, quibus est permissum jura condere. It is true that the first of these passages does not say that the opinion of these privileged lawyers had the force of a law for the judges. For this reason M. Hugo altogether rejects the opinion adopted by Heineccius, by Bach, and in general by all the writers who preceded him. He conceives that the 8 of the Institutes referred to the constitution of Valentinian III., which regulated the respective authority to be ascribed to the different writings of the great civilians. But we have now the following passage in the Institutes of Gaius: Responsa prudentum sunt sententiae et opiniones eorum, quibus permissum est jura condere; quorum omnium si in unum sententiae concorrupt, id quod ita sentiunt, legis vicem obtinet, si vero dissentiunt, judici licet, quam velit sententiam sequi, idque rescripto Divi Hadrian signiticatur. I do not know, how in opposition to this passage, the opinion of M. Hugo can be maintained. We must add to this the passage quoted from Pomponius and from such strong proofs, it seems incontestable that the emperors had granted some kind of privilege to certain civilians, quibus permissum erat jura condere. Their opinion had sometimes the force of law, legis vicem. M. Hugo, endeavoring to reconcile this phrase with his system, gives it a forced interpretation, which quite alters the sense; he supposes that the passage contains no more than what is evident of itself, that the authority of the civilians was to be respected, thus making a privilege of that which was free to all the world. It appears to me almost indisputable, that the emperors had sanctioned certain provisions relative to the authority of these civilians, consulted by the judges. But how far was their advice to be respected? This is a question which it is impossible to answer precisely, from the want of historic evidence. Is it not possible that the emperors established an authority to be consulted by the judges? and in this case this authority must have emanated from certain civilians named for this purpose by the emperors. See Hugo, l. c. Moreover, may not the passage of Suetonius, in the Life of Caligula, where he says that the emperor would no longer permit the civilians to give their advice, mean that Caligula entertained the design of suppressing this institution? See on this passage the Themis, vol. xi. p. 17, 36. Our author not being acquainted with the opinions opposed to Heineccius has not gone to the bottom of the subject. — W.]
The most absolute mandate could only require that the judges should agree with the civilians, if the civilians agreed among themselves. But positive institutions are often the result of custom and prejudice; laws and language are ambiguous and arbitrary; where reason is incapable of pronouncing, the love of argument is inflamed by the envy of rivals, the vanity of masters, the blind attachment of their disciples; and the Roman jurisprudence was divided by the once famous sects of the Proculians and Sabinians. 62 Two sages of the law, Ateius Capito and Antistius Labeo, 63 adorned the peace of the Augustan age; the former distinguished by the favor of his sovereign; the latter more illustrious by his contempt of that favor, and his stern though harmless opposition to the tyrant of Rome. Their legal studies were influenced by the various colors of their temper and principles. Labeo was attached to the form of the old republic; his rival embraced the more profitable substance of the rising monarchy. But the disposition of a courtier is tame and submissive; and Capito seldom presumed to deviate from the sentiments, or at least from the words, of his predecessors; while the bold republican pursued his independent ideas without fear of paradox or innovations. The freedom of Labeo was enslaved, however, by the rigor of his own conclusions, and he decided, according to the letter of the law, the same questions which his indulgent competitor resolved with a latitude of equity more suitable to the common sense and feelings of mankind. If a fair exchange had been substituted to the payment of money, Capito still considered the transaction as a legal sale; 64 and he consulted nature for the age of puberty, without confining his definition to the precise period of twelve or fourteen years. 65 This opposition of sentiments was propagated in the writings and lessons of the two founders; the schools of Capito and Labeo maintained their inveterate conflict from the age of Augustus to that of Adrian; 66 and the two sects derived their appellations from Sabinus and Proculus, their most celebrated teachers. The names of Cassians and Pegasians were likewise applied to the same parties; but, by a strange reverse, the popular cause was in the hands of Pegasus, 67 a timid slave of Domitian, while the favorite of the Caesars was represented by Cassius, 68 who gloried in his descent from the patriot assassin. By the perpetual edict, the controversies of the sects were in a great measure determined. For that important work, the emperor Adrian preferred the chief of the Sabinians: the friends of monarchy prevailed; but the moderation of Salvius Julian insensibly reconciled the victors and the vanquished. Like the contemporary philosophers, the lawyers of the age of the Antonines disclaimed the authority of a master, and adopted from every system the most probable doctrines. 69 But their writings would have been less voluminous, had their choice been more unanimous. The conscience of the judge was perplexed by the number and weight of discordant testimonies, and every sentence that his passion or interest might pronounce was justified by the sanction of some venerable name. An indulgent edict of the younger Theodosius excused him from the labor of comparing and weighing their arguments. Five civilians, Caius, Papinian, Paul, Ulpian, and Modestinus, were established as the oracles of jurisprudence: a majority was decisive: but if their opinions were equally divided, a casting vote was ascribed to the superior wisdom of Papinian. 70
62 I have perused the Diatribe of Gotfridus Mascovius, the learned Mascou, de Sectis Jurisconsultorum, (Lipsiae, 1728, in 12mo., p. 276,) a learned treatise on a narrow and barren ground.]
63 See the character of Antistius Labeo in Tacitus, (Annal. iii. 75,) and in an epistle of Ateius Capito, (Aul. Gellius, xiii. 12,) who accuses his rival of libertas nimia et vecors. Yet Horace would not have lashed a virtuous and respectable senator; and I must adopt the emendation of Bentley, who reads Labieno insanior, (Serm. I. iii. 82.) See Mascou, de Sectis, (c. i. p. 1 — 24.)]
64 Justinian (Institut. l. iii. tit. 23, and Theophil. Vers. Graec. p. 677, 680) has commemorated this weighty dispute, and the verses of Homer that were alleged on either side as legal authorities. It was decided by Paul, (leg. 33, ad Edict. in Pandect. l. xviii. tit. i. leg. 1,) since, in a simple exchange, the buyer could not be discriminated from the seller.]
65 This controversy was likewise given for the Proculians, to supersede the indecency of a search, and to comply with the aphorism of Hippocrates, who was attached to the septenary number of two weeks of years, or 700 of days, (Institut. l. i. tit. xxii.) Plutarch and the Stoics (de Placit. Philosoph. l. v. c. 24) assign a more natural reason. Fourteen years is the age. See the vestigia of the sects in Mascou, c. ix. p. 145 — 276.]
66 The series and conclusion of the sects are described by Mascou, c. ii. — vii. p. 24 — 120;) and it would be almost ridiculous to praise his equal justice to these obsolete sects.
Note: The work of Gaius, subsequent to the time of Adrian, furnishes us with some information on this subject. The disputes which rose between these two sects appear to have been very numerous. Gaius avows himself a disciple of Sabinus and of Caius. Compare Hugo, vol. ii. p. 106. — W.]
67 At the first summons he flies to the turbot-council; yet Juvenal (Satir. iv. 75 — 81) styles the praefect or bailiff of Rome sanctissimus legum interpres. From his science, says the old scholiast, he was called, not a man, but a book. He derived the singular name of Pegasus from the galley which his father commanded.]
68 Tacit. Annal. xvii. 7. Sueton. in Nerone, c. xxxvii.]
69 Mascou, de Sectis, c. viii. p. 120 — 144 de Herciscundis, a legal term which was applied to these eclectic lawyers: herciscere is synonymous to dividere.
Note: This word has never existed. Cujacius is the author of it, who read me words terris condi in Servius ad Virg. herciscundi, to which he gave an erroneous interpretation. — W.]
70 See the Theodosian Code, l. i. tit. iv. with Godefroy’s Commentary, tom. i. p. 30 — 35. † This decree might give occasion to Jesuitical disputes like those in the Lettres Provinciales, whether a Judge was obliged to follow the opinion of Papinian, or of a majority, against his judgment, against his conscience, &c. Yet a legislator might give that opinion, however false, the validity, not of truth, but of law.
Note: We possess (since 1824) some interesting information as to the framing of the Theodosian Code, and its ratification at Rome, in the year 438. M. Closius, now professor at Dorpat in Russia, and M. Peyron, member of the Academy of Turin, have discovered, the one at Milan, the other at Turin, a great part of the five first books of the Code which were wanting, and besides this, the reports (gesta) of the sitting of the senate at Rome, in which the Code was published, in the year after the marriage of Valentinian III. Among these pieces are the constitutions which nominate commissioners for the formation of the Code; and though there are many points of considerable obscurity in these documents, they communicate many facts relative to this legislation.
1. That Theodosius designed a great reform in the legislation; to add to the Gregorian and Hermogenian codes all the new constitutions from Constantine to his own day; and to frame a second code for common use with extracts from the three codes, and from the works of the civil lawyers. All laws either abrogated or fallen into disuse were to be noted under their proper heads.
2. An Ordinance was issued in 429 to form a commission for this purpose of nine persons, of which Antiochus, as quaestor and praefectus, was president. A second commission of sixteen members was issued in 435 under the same president.
3. A code, which we possess under the name of Codex Theodosianus, was finished in 438, published in the East, in an ordinance addressed to the Praetorian praefect, Florentinus, and intended to be published in the West.
4. Before it was published in the West, Valentinian submitted it to the senate. There is a report of the proceedings of the senate, which closed with loud acclamations and gratulations. — From Warnkonig, Histoire du Droit Romain, p. 169 — Wenck has published this work, Codicis Theodosiani libri priores. Leipzig, 1825. — M.]
Note *: Closius of Tubingen communicated to M.Warnkonig the two following constitutions of the emperor Constantine, which he discovered in the Ambrosian library at Milan:—
1. Imper. Constantinus Aug. ad Maximium Praef. Praetorio.
Perpetuas prudentum contentiones eruere cupientes, Ulpiani ac Pauli, in Papinianum notas, qui dum ingenii laudem sectantur, non tam corrigere eum quam depravere maluerunt, aboleri praecepimus. Dat. III. Kalend. Octob. Const. Cons. et Crispi, (321.) Idem. Aug. ad Maximium Praef Praet.
Universa, quae scriptura Pauli continentur, recepta auctoritate firmanda runt, et omni veneratione celebranda. Ideoque sententiarum libros plepissima luce et perfectissima elocutione et justissima juris ratione succinctos in judiciis prolatos valere minimie dubitatur. Dat. V. Kalend. Oct. Trovia Coust. et Max. Coss. (327.) — W]
When Justinian ascended the throne, the reformation of the Roman jurisprudence was an arduous but indispensable task. In the space of ten centuries, the infinite variety of laws and legal opinions had filled many thousand volumes, which no fortune could purchase and no capacity could digest. Books could not easily be found; and the judges, poor in the midst of riches, were reduced to the exercise of their illiterate discretion. The subjects of the Greek provinces were ignorant of the language that disposed of their lives and properties; and the barbarous dialect of the Latins was imperfectly studied in the academies of Berytus and Constantinople. As an Illyrian soldier, that idiom was familiar to the infancy of Justinian; his youth had been instructed by the lessons of jurisprudence, and his Imperial choice selected the most learned civilians of the East, to labor with their sovereign in the work of reformation. 71 The theory of professors was assisted by the practice of advocates, and the experience of magistrates; and the whole undertaking was animated by the spirit of Tribonian. 72 This extraordinary man, the object of so much praise and censure, was a native of Side in Pamphylia; and his genius, like that of Bacon, embraced, as his own, all the business and knowledge of the age. Tribonian composed, both in prose and verse, on a strange diversity of curious and abstruse subjects: 73 a double panegyric of Justinian and the life of the philosopher Theodotus; the nature of happiness and the duties of government; Homer’s catalogue and the four-and-twenty sorts of metre; the astronomical canon of Ptolemy; the changes of the months; the houses of the planets; and the harmonic system of the world. To the literature of Greece he added the use of the Latin tonque; the Roman civilians were deposited in his library and in his mind; and he most assiduously cultivated those arts which opened the road of wealth and preferment. From the bar of the Praetorian praefects, he raised himself to the honors of quaestor, of consul, and of master of the offices: the council of Justinian listened to his eloquence and wisdom; and envy was mitigated by the gentleness and affability of his manners. The reproaches of impiety and avarice have stained the virtue or the reputation of Tribonian. In a bigoted and persecuting court, the principal minister was accused of a secret aversion to the Christian faith, and was supposed to entertain the sentiments of an Atheist and a Pagan, which have been imputed, inconsistently enough, to the last philosophers of Greece. His avarice was more clearly proved and more sensibly felt. If he were swayed by gifts in the administration of justice, the example of Bacon will again occur; nor can the merit of Tribonian atone for his baseness, if he degraded the sanctity of his profession; and if laws were every day enacted, modified, or repealed, for the base consideration of his private emolument. In the sedition of Constantinople, his removal was granted to the clamors, perhaps to the just indignation, of the people: but the quaestor was speedily restored, and, till the hour of his death, he possessed, above twenty years, the favor and confidence of the emperor. His passive and dutiful submission had been honored with the praise of Justinian himself, whose vanity was incapable of discerning how often that submission degenerated into the grossest adulation. Tribonian adored the virtues of his gracious of his gracious master; the earth was unworthy of such a prince; and he affected a pious fear, that Justinian, like Elijah or Romulus, would be snatched into the air, and translated alive to the mansions of celestial glory. 74
71 For the legal labors of Justinian, I have studied the Preface to the Institutes; the 1st, 2d, and 3d Prefaces to the Pandects; the 1st and 2d Preface to the Code; and the Code itself, (l. i. tit. xvii. de Veteri Jure enucleando.) After these original testimonies, I have consulted, among the moderns, Heineccius, (Hist. J. R. No. 383 — 404,) Terasson. (Hist. de la Jurisprudence Romaine, p. 295 — 356,) Gravina, (Opp. p. 93 — 100,) and Ludewig, in his Life of Justinian, (p.19 — 123, 318 — 321; for the Code and Novels, p. 209 — 261; for the Digest or Pandects, p. 262 — 317.)]
72 For the character of Tribonian, see the testimonies of Procopius, (Persic. l. i. c. 23, 24. Anecdot. c. 13, 20,) and Suidas, (tom. iii. p. 501, edit. Kuster.) Ludewig (in Vit. Justinian, p. 175 — 209) works hard, very hard, to whitewash — the blackamoor.]
73 I apply the two passages of Suidas to the same man; every circumstance so exactly tallies. Yet the lawyers appear ignorant; and Fabricius is inclined to separate the two characters, (Bibliot. Grae. tom. i. p. 341, ii. p. 518, iii. p. 418, xii. p. 346, 353, 474.]
74 This story is related by Hesychius, (de Viris Illustribus,) Procopius, (Anecdot. c. 13,) and Suidas, (tom. iii. p. 501.) Such flattery is incredible!
— Nihil est quod credere de se Non possit, cum laudatur Diis aequa potestas. Fontenelle (tom. i. p. 32 — 39) has ridiculed the impudence of the modest Virgil. But the same Fontenelle places his king above the divine Augustus; and the sage Boileau has not blushed to say, “Le destin a ses yeux n’oseroit balancer” Yet neither Augustus nor Louis XIV. were fools.]
If Caesar had achieved the reformation of the Roman law, his creative genius, enlightened by reflection and study, would have given to the world a pure and original system of jurisprudence. Whatever flattery might suggest, the emperor of the East was afraid to establish his private judgment as the standard of equity: in the possession of legislative power, he borrowed the aid of time and opinion; and his laborious compilations are guarded by the sages and legislature of past times. Instead of a statue cast in a simple mould by the hand of an artist, the works of Justinian represent a tessellated pavement of antique and costly, but too often of incoherent, fragments. In the first year of his reign, he directed the faithful Tribonian, and nine learned associates, to revise the ordinances of his predecessors, as they were contained, since the time of Adrian, in the Gregorian Hermogenian, and Theodosian codes; to purge the errors and contradictions, to retrench whatever was obsolete or superfluous, and to select the wise and salutary laws best adapted to the practice of the tribunals and the use of his subjects. The work was accomplished in fourteen months; and the twelve books or tables, which the new decemvirs produced, might be designed to imitate the labors of their Roman predecessors. The new Code of Justinian was honored with his name, and confirmed by his royal signature: authentic transcripts were multiplied by the pens of notaries and scribes; they were transmitted to the magistrates of the European, the Asiatic, and afterwards the African provinces; and the law of the empire was proclaimed on solemn festivals at the doors of churches. A more arduous operation was still behind — to extract the spirit of jurisprudence from the decisions and conjectures, the questions and disputes, of the Roman civilians. Seventeen lawyers, with Tribonian at their head, were appointed by the emperor to exercise an absolute jurisdiction over the works of their predecessors. If they had obeyed his commands in ten years, Justinian would have been satisfied with their diligence; and the rapid composition of the Digest of Pandects, 75 in three years, will deserve praise or censure, according to the merit of the execution. From the library of Tribonian, they chose forty, the most eminent civilians of former times: 76 two thousand treatises were comprised in an abridgment of fifty books; and it has been carefully recorded, that three millions of lines or sentences, 77 were reduced, in this abstract, to the moderate number of one hundred and fifty thousand. The edition of this great work was delayed a month after that of the Institutes; and it seemed reasonable that the elements should precede the digest of the Roman law. As soon as the emperor had approved their labors, he ratified, by his legislative power, the speculations of these private citizens: their commentaries, on the twelve tables, the perpetual edict, the laws of the people, and the decrees of the senate, succeeded to the authority of the text; and the text was abandoned, as a useless, though venerable, relic of antiquity. The Code, the Pandects, and the Institutes, were declared to be the legitimate system of civil jurisprudence; they alone were admitted into the tribunals, and they alone were taught in the academies of Rome, Constantinople, and Berytus. Justinian addressed to the senate and provinces his eternal oracles; and his pride, under the mask of piety, ascribed the consummation of this great design to the support and inspiration of the Deity.
75 General receivers was a common title of the Greek miscellanies, (Plin. Praefat. ad Hist. Natur.) The Digesta of Scaevola, Marcellinus, Celsus, were already familiar to the civilians: but Justinian was in the wrong when he used the two appellations as synonymous. Is the word Pandects Greek or Latin — masculine or feminine? The diligent Brenckman will not presume to decide these momentous controversies, (Hist. Pandect. Florentine. p. 200 — 304.)
Note: The word was formerly in common use. See the preface is Aulus Gellius — W]
76 Angelus Politianus (l. v. Epist. ult.) reckons thirty-seven (p. 192 — 200) civilians quoted in the Pandects — a learned, and for his times, an extraordinary list. The Greek index to the Pandects enumerates thirty-nine, and forty are produced by the indefatigable Fabricius, (Bibliot. Graec. tom. iii. p. 488 — 502.) Antoninus Augustus (de Nominibus Propriis Pandect. apud Ludewig, p. 283) is said to have added fifty-four names; but they must be vague or second-hand references.]
77 The item of the ancient Mss. may be strictly defined as sentences or periods of a complete sense, which, on the breadth of the parchment rolls or volumes, composed as many lines of unequal length. The number in each book served as a check on the errors of the scribes, (Ludewig, p. 211 — 215; and his original author Suicer. Thesaur. Ecclesiast. tom. i. p 1021 — 1036).]
Since the emperor declined the fame and envy of original composition, we can only require, at his hands, method choice, and fidelity, the humble, though indispensable, virtues of a compiler. Among the various combinations of ideas, it is difficult to assign any reasonable preference; but as the order of Justinian is different in his three works, it is possible that all may be wrong; and it is certain that two cannot be right. In the selection of ancient laws, he seems to have viewed his predecessors without jealousy, and with equal regard: the series could not ascend above the reign of Adrian, and the narrow distinction of Paganism and Christianity, introduced by the superstition of Theodosius, had been abolished by the consent of mankind. But the jurisprudence of the Pandects is circumscribed within a period of a hundred years, from the perpetual edict to the death of Severus Alexander: the civilians who lived under the first Caesars are seldom permitted to speak, and only three names can be attributed to the age of the republic. The favorite of Justinian (it has been fiercely urged) was fearful of encountering the light of freedom and the gravity of Roman sages.
Tribonian condemned to oblivion the genuine and native wisdom of Cato, the Scaevolas, and Sulpicius; while he invoked spirits more congenial to his own, the Syrians, Greeks, and Africans, who flocked to the Imperial court to study Latin as a foreign tongue, and jurisprudence as a lucrative profession. But the ministers of Justinian, 78 were instructed to labor, not for the curiosity of antiquarians, but for the immediate benefit of his subjects. It was their duty to select the useful and practical parts of the Roman law; and the writings of the old republicans, however curious on excellent, were no longer suited to the new system of manners, religion, and government. Perhaps, if the preceptors and friends of Cicero were still alive, our candor would acknowledge, that, except in purity of language, 79 their intrinsic merit was excelled by the school of Papinian and Ulpian. The science of the laws is the slow growth of time and experience, and the advantage both of method and materials, is naturally assumed by the most recent authors. The civilians of the reign of the Antonines had studied the works of their predecessors: their philosophic spirit had mitigated the rigor of antiquity, simplified the forms of proceeding, and emerged from the jealousy and prejudice of the rival sects. The choice of the authorities that compose the Pandects depended on the judgment of Tribonian: but the power of his sovereign could not absolve him from the sacred obligations of truth and fidelity. As the legislator of the empire, Justinian might repeal the acts of the Antonines, or condemn, as seditious, the free principles, which were maintained by the last of the Roman lawyers. 80 But the existence of past facts is placed beyond the reach of despotism; and the emperor was guilty of fraud and forgery, when he corrupted the integrity of their text, inscribed with their venerable names the words and ideas of his servile reign, 81 and suppressed, by the hand of power, the pure and authentic copies of their sentiments. The changes and interpolations of Tribonian and his colleagues are excused by the pretence of uniformity: but their cares have been insufficient, and the antinomies, or contradictions of the Code and Pandects, still exercise the patience and subtilty of modern civilians. 82
78 An ingenious and learned oration of Schultingius (Jurisprudentia Ante-Justinianea, p. 883 — 907) justifies the choice of Tribonian, against the passionate charges of Francis Hottoman and his sectaries.]
79 Strip away the crust of Tribonian, and allow for the use of technical words, and the Latin of the Pandects will be found not unworthy of the silver age. It has been vehemently attacked by Laurentius Valla, a fastidious grammarian of the xvth century, and by his apologist Floridus Sabinus. It has been defended by Alciat, and a name less advocate, (most probably James Capellus.) Their various treatises are collected by Duker, (Opuscula de Latinitate veterum Jurisconsultorum, Lugd. Bat. 1721, in 12mo.)
Note: Gibbon is mistaken with regard to Valla, who, though he inveighs against the barbarous style of the civilians of his own day, lavishes the highest praise on the admirable purity of the language of the ancient writers on civil law. (M. Warnkonig quotes a long passage of Valla in justification of this observation.) Since his time, this truth has been recognized by men of the highest eminence, such as Erasmus, David Hume and Runkhenius. — W.]
80 Nomina quidem veteribus servavimus, legum autem veritatem nostram fecimus. Itaque siquid erat in illis seditiosum, multa autem talia erant ibi reposita, hoc decisum est et definitum, et in perspicuum finem deducta est quaeque lex, (Cod. Justinian. l. i. tit. xvii. leg. 3, No 10.) A frank confession!
Note: Seditiosum, in the language of Justinian, means not seditious, but discounted. — W.]
81 The number of these emblemata (a polite name for forgeries) is much reduced by Bynkershoek, (in the four last books of his Observations,) who poorly maintains the right of Justinian and the duty of Tribonian.]
82 The antinomies, or opposite laws of the Code and Pandects, are sometimes the cause, and often the excuse, of the glorious uncertainty of the civil law, which so often affords what Montaigne calls “Questions pour l’Ami.” See a fine passage of Franciscus Balduinus in Justinian, (l. ii. p. 259, &c., apud Ludewig, p. 305, 306.)]
A rumor devoid of evidence has been propagated by the enemies of Justinian; that the jurisprudence of ancient Rome was reduced to ashes by the author of the Pandects, from the vain persuasion, that it was now either false or superfluous. Without usurping an office so invidious, the emperor might safely commit to ignorance and time the accomplishments of this destructive wish. Before the invention of printing and paper, the labor and the materials of writing could be purchased only by the rich; and it may reasonably be computed, that the price of books was a hundred fold their present value. 83 Copies were slowly multiplied and cautiously renewed: the hopes of profit tempted the sacrilegious scribes to erase the characters of antiquity, * and Sophocles or Tacitus were obliged to resign the parchment to missals, homilies, and the golden legend. 84 If such was the fate of the most beautiful compositions of genius, what stability could be expected for the dull and barren works of an obsolete science? The books of jurisprudence were interesting to few, and entertaining to none: their value was connected with present use, and they sunk forever as soon as that use was superseded by the innovations of fashion, superior merit, or public authority. In the age of peace and learning, between Cicero and the last of the Antonines, many losses had been already sustained, and some luminaries of the school, or forum, were known only to the curious by tradition and report. Three hundred and sixty years of disorder and decay accelerated the progress of oblivion; and it may fairly be presumed, that of the writings, which Justinian is accused of neglecting, many were no longer to be found in the libraries of the East. 85 The copies of Papinian, or Ulpian, which the reformer had proscribed, were deemed unworthy of future notice: the Twelve Tables and praetorian edicts insensibly vanished, and the monuments of ancient Rome were neglected or destroyed by the envy and ignorance of the Greeks. Even the Pandects themselves have escaped with difficulty and danger from the common shipwreck, and criticism has pronounced that all the editions and manuscripts of the West are derived from one original. 86 It was transcribed at Constantinople in the beginning of the seventh century, 87 was successively transported by the accidents of war and commerce to Amalphi, 88 Pisa, 89 and Florence, 90 and is now deposited as a sacred relic 91 in the ancient palace of the republic. 92
83 When Faust, or Faustus, sold at Paris his first printed Bibles as manuscripts, the price of a parchment copy was reduced from four or five hundred to sixty, fifty, and forty crowns. The public was at first pleased with the cheapness, and at length provoked by the discovery of the fraud, (Mattaire, Annal. Typograph. tom. i. p. 12; first edit.)]
* Among the works which have been recovered, by the persevering and successful endeavors of M. Mai and his followers to trace the imperfectly erased characters of the ancient writers on these Palimpsests, Gibbon at this period of his labors would have hailed with delight the recovery of the Institutes of Gaius, and the fragments of the Theodosian Code, published by M Keyron of Turin. — M.]
84 This execrable practice prevailed from the viiith, and more especially from the xiith, century, when it became almost universal (Montfaucon, in the Memoires de l’Academie, tom. vi. p. 606, &c. Bibliotheque Raisonnee de la Diplomatique, tom. i. p. 176.)]
85 Pomponius (Pandect. l. i. tit. ii. leg. 2) observes, that of the three founders of the civil law, Mucius, Brutus, and Manilius, extant volumina, scripta Manilii monumenta; that of some old republican lawyers, haec versantur eorum scripta inter manus hominum. Eight of the Augustan sages were reduced to a compendium: of Cascellius, scripta non extant sed unus liber, &c.; of Trebatius, minus frequentatur; of Tubero, libri parum grati sunt. Many quotations in the Pandects are derived from books which Tribonian never saw; and in the long period from the viith to the xiiith century of Rome, the apparent reading of the moderns successively depends on the knowledge and veracity of their predecessors.]
86 All, in several instances, repeat the errors of the scribe and the transpositions of some leaves in the Florentine Pandects. This fact, if it be true, is decisive. Yet the Pandects are quoted by Ivo of Chartres, (who died in 1117,) by Theobald, archbishop of Canterbury, and by Vacarius, our first professor, in the year 1140, (Selden ad Fletam, c. 7, tom. ii. p. 1080 — 1085.) Have our British Mss. of the Pandects been collated?]
87 See the description of this original in Brenckman, (Hist. Pandect. Florent. l. i. c. 2, 3, p. 4 — 17, and l. ii.) Politian, an enthusiast, revered it as the authentic standard of Justinian himself, (p. 407, 408;) but this paradox is refuted by the abbreviations of the Florentine Ms. (l. ii. c. 3, p. 117 — 130.) It is composed of two quarto volumes, with large margins, on a thin parchment, and the Latin characters betray the band of a Greek scribe.]
88 Brenckman, at the end of his history, has inserted two dissertations on the republic of Amalphi, and the Pisan war in the year 1135, &c.]
89 The discovery of the Pandects at Amalphi (A. D 1137) is first noticed (in 1501) by Ludovicus Bologninus, (Brenckman, l. i. c. 11, p. 73, 74, l. iv. c. 2, p. 417 — 425,) on the faith of a Pisan chronicle, (p. 409, 410,) without a name or a date. The whole story, though unknown to the xiith century, embellished by ignorant ages, and suspected by rigid criticism, is not, however, destitute of much internal probability, (l. i. c. 4 — 8, p. 17 — 50.) The Liber Pandectarum of Pisa was undoubtedly consulted in the xivth century by the great Bartolus, (p. 406, 407. See l. i. c. 9, p. 50 — 62.)
Note: Savigny (vol. iii. p. 83, 89) examines and rejects the whole story. See likewise Hallam vol. iii. p. 514. — M.]
90 Pisa was taken by the Florentines in the year 1406; and in 1411 the Pandects were transported to the capital. These events are authentic and famous.]
91 They were new bound in purple, deposited in a rich casket, and shown to curious travellers by the monks and magistrates bareheaded, and with lighted tapers, (Brenckman, l. i. c. 10, 11, 12, p. 62 — 93.)]
92 After the collations of Politian, Bologninus, and Antoninus Augustinus, and the splendid edition of the Pandects by Taurellus, (in 1551,) Henry Brenckman, a Dutchman, undertook a pilgrimage to Florence, where he employed several years in the study of a single manuscript. His Historia Pandectarum Florentinorum, (Utrecht, 1722, in 4to.,) though a monument of industry, is a small portion of his original design.]
It is the first care of a reformer to prevent any future reformation. To maintain the text of the Pandects, the Institutes, and the Code, the use of ciphers and abbreviations was rigorously proscribed; and as Justinian recollected, that the perpetual edict had been buried under the weight of commentators, he denounced the punishment of forgery against the rash civilians who should presume to interpret or pervert the will of their sovereign. The scholars of Accursius, of Bartolus, of Cujacius, should blush for their accumulated guilt, unless they dare to dispute his right of binding the authority of his successors, and the native freedom of the mind. But the emperor was unable to fix his own inconstancy; and, while he boasted of renewing the exchange of Diomede, of transmuting brass into gold, 93 discovered the necessity of purifying his gold from the mixture of baser alloy. Six years had not elapsed from the publication of the Code, before he condemned the imperfect attempt, by a new and more accurate edition of the same work; which he enriched with two hundred of his own laws, and fifty decisions of the darkest and most intricate points of jurisprudence. Every year, or, according to Procopius, each day, of his long reign, was marked by some legal innovation. Many of his acts were rescinded by himself; many were rejected by his successors; many have been obliterated by time; but the number of sixteen Edicts, and one hundred and sixty-eight Novels, 94 has been admitted into the authentic body of the civil jurisprudence. In the opinion of a philosopher superior to the prejudices of his profession, these incessant, and, for the most part, trifling alterations, can be only explained by the venal spirit of a prince, who sold without shame his judgments and his laws. 95 The charge of the secret historian is indeed explicit and vehement; but the sole instance, which he produces, may be ascribed to the devotion as well as to the avarice of Justinian. A wealthy bigot had bequeathed his inheritance to the church of Emesa; and its value was enhanced by the dexterity of an artist, who subscribed confessions of debt and promises of payment with the names of the richest Syrians. They pleaded the established prescription of thirty or forty years; but their defence was overruled by a retrospective edict, which extended the claims of the church to the term of a century; an edict so pregnant with injustice and disorder, that, after serving this occasional purpose, it was prudently abolished in the same reign. 96 If candor will acquit the emperor himself, and transfer the corruption to his wife and favorites, the suspicion of so foul a vice must still degrade the majesty of his laws; and the advocates of Justinian may acknowledge, that such levity, whatsoever be the motive, is unworthy of a legislator and a man.
93 Apud Homerum patrem omnis virtutis, (1st Praefat. ad Pandect.) A line of Milton or Tasso would surprise us in an act of parliament. Quae omnia obtinere sancimus in omne aevum. Of the first Code, he says, (2d Praefat.,) in aeternum valiturum.
Man and forever!]
94 Novellae is a classic adjective, but a barbarous substantive, (Ludewig, p. 245.) Justinian never collected them himself; the nine collations, the legal standard of modern tribunals, consist of ninety-eight Novels; but the number was increased by the diligence of Julian, Haloander, and Contius, (Ludewig, p. 249, 258 Aleman. Not in Anecdot. p. 98.)]
95 Montesquieu, Considerations sur la Grandeur et la Decadence des Romains, c. 20, tom. iii. p. 501, in 4to. On this occasion he throws aside the gown and cap of a President a Mortier.]
96 Procopius, Anecdot. c. 28. A similar privilege was granted to the church of Rome, (Novel. ix.) For the general repeal of these mischievous indulgences, see Novel. cxi. and Edict. v.]
Monarchs seldom condescend to become the preceptors of their subjects; and some praise is due to Justinian, by whose command an ample system was reduced to a short and elementary treatise. Among the various institutes of the Roman law, 97 those of Caius 98 were the most popular in the East and West; and their use may be considered as an evidence of their merit. They were selected by the Imperial delegates, Tribonian, Theophilus, and Dorotheus; and the freedom and purity of the Antonines was incrusted with the coarser materials of a degenerate age. The same volume which introduced the youth of Rome, Constantinople, and Berytus, to the gradual study of the Code and Pandects, is still precious to the historian, the philosopher, and the magistrate. The Institutes of Justinian are divided into four books: they proceed, with no contemptible method, from, I. Persons, to, II. Things, and from things, to, III. Actions; and the article IV., of Private Wrongs, is terminated by the principles of Criminal Law. *
97 Lactantius, in his Institutes of Christianity, an elegant and specious work, proposes to imitate the title and method of the civilians. Quidam prudentes et arbitri aequitatis Institutiones Civilis Juris compositas ediderunt, (Institut. Divin. l. i. c. 1.) Such as Ulpian, Paul, Florentinus, Marcian.]
98 The emperor Justinian calls him suum, though he died before the end of the second century. His Institutes are quoted by Servius, Boethius, Priscian, &c.; and the Epitome by Arrian is still extant. (See the Prolegomena and notes to the edition of Schulting, in the Jurisprudentia Ante-Justinianea, Lugd. Bat. 1717. Heineccius, Hist. J R No. 313. Ludewig, in Vit. Just. p. 199.)]
* Gibbon, dividing the Institutes into four parts, considers the appendix of the criminal law in the last title as a fourth part. — W.]
The distinction of ranks and persons is the firmest basis of a mixed and limited government. In France, the remains of liberty are kept alive by the spirit, the honors, and even the prejudices, of fifty thousand nobles. 99 Two hundred families † supply, in lineal descent, the second branch of English legislature, which maintains, between the king and commons, the balance of the constitution. A gradation of patricians and plebeians, of strangers and subjects, has supported the aristocracy of Genoa, Venice, and ancient Rome. The perfect equality of men is the point in which the extremes of democracy and despotism are confounded; since the majesty of the prince or people would be offended, if any heads were exalted above the level of their fellow-slaves or fellow-citizens. In the decline of the Roman empire, the proud distinctions of the republic were gradually abolished, and the reason or instinct of Justinian completed the simple form of an absolute monarchy. The emperor could not eradicate the popular reverence which always waits on the possession of hereditary wealth, or the memory of famous ancestors. He delighted to honor, with titles and emoluments, his generals, magistrates, and senators; and his precarious indulgence communicated some rays of their glory to the persons of their wives and children. But in the eye of the law, all Roman citizens were equal, and all subjects of the empire were citizens of Rome. That inestimable character was degraded to an obsolete and empty name. The voice of a Roman could no longer enact his laws, or create the annual ministers of his power: his constitutional rights might have checked the arbitrary will of a master: and the bold adventurer from Germany or Arabia was admitted, with equal favor, to the civil and military command, which the citizen alone had been once entitled to assume over the conquests of his fathers. The first Caesars had scrupulously guarded the distinction of ingenuous and servile birth, which was decided by the condition of the mother; and the candor of the laws was satisfied, if her freedom could be ascertained, during a single moment, between the conception and the delivery. The slaves, who were liberated by a generous master, immediately entered into the middle class of libertines or freedmen; but they could never be enfranchised from the duties of obedience and gratitude; whatever were the fruits of their industry, their patron and his family inherited the third part; or even the whole of their fortune, if they died without children and without a testament. Justinian respected the rights of patrons; but his indulgence removed the badge of disgrace from the two inferior orders of freedmen; whoever ceased to be a slave, obtained, without reserve or delay, the station of a citizen; and at length the dignity of an ingenuous birth, which nature had refused, was created, or supposed, by the omnipotence of the emperor. Whatever restraints of age, or forms, or numbers, had been formerly introduced to check the abuse of manumissions, and the too rapid increase of vile and indigent Romans, he finally abolished; and the spirit of his laws promoted the extinction of domestic servitude. Yet the eastern provinces were filled, in the time of Justinian, with multitudes of slaves, either born or purchased for the use of their masters; and the price, from ten to seventy pieces of gold, was determined by their age, their strength, and their education. 100 But the hardships of this dependent state were continually diminished by the influence of government and religion: and the pride of a subject was no longer elated by his absolute dominion over the life and happiness of his bondsman. 101
99 See the Annales Politiques de l’Abbe de St. Pierre, tom. i. p. 25 who dates in the year 1735. The most ancient families claim the immemorial possession of arms and fiefs. Since the Crusades, some, the most truly respectable, have been created by the king, for merit and services. The recent and vulgar crowd is derived from the multitude of venal offices without trust or dignity, which continually ennoble the wealthy plebeians.]
† Since the time of Gibbon, the House of Peers has been more than doubled: it is above 400, exclusive of the spiritual peers — a wise policy to increase the patrician order in proportion to the general increase of the nation. — M.]
100 If the option of a slave was bequeathed to several legatees, they drew lots, and the losers were entitled to their share of his value; ten pieces of gold for a common servant or maid under ten years: if above that age, twenty; if they knew a trade, thirty; notaries or writers, fifty; midwives or physicians, sixty; eunuchs under ten years, thirty pieces; above, fifty; if tradesmen, seventy, (Cod. l. vi. tit. xliii. leg. 3.) These legal prices are generally below those of the market.]
101 For the state of slaves and freedmen, see Institutes, l. i. tit. iii. — viii. l. ii. tit. ix. l. iii. tit. viii. ix. Pandects or Digest, l. i. tit. v. vi. l. xxxviii. tit. i. — iv., and the whole of the xlth book. Code, l. vi. tit. iv. v. l. vii. tit. i. — xxiii. Be it henceforward understood that, with the original text of the Institutes and Pandects, the correspondent articles in the Antiquities and Elements of Heineccius are implicitly quoted; and with the xxvii. first books of the Pandects, the learned and rational Commentaries of Gerard Noodt, (Opera, tom. ii. p. 1 — 590, the end. Lugd. Bat. 1724.)]
The law of nature instructs most animals to cherish and educate their infant progeny. The law of reason inculcates to the human species the returns of filial piety. But the exclusive, absolute, and perpetual dominion of the father over his children, is peculiar to the Roman jurisprudence, 102 and seems to be coeval with the foundation of the city. 103 The paternal power was instituted or confirmed by Romulus himself; and, after the practice of three centuries, it was inscribed on the fourth table of the Decemvirs. In the forum, the senate, or the camp, the adult son of a Roman citizen enjoyed the public and private rights of a person: in his father’s house he was a mere thing; ‡ confounded by the laws with the movables, the cattle, and the slaves, whom the capricious master might alienate or destroy, without being responsible to any earthly tribunal. The hand which bestowed the daily sustenance might resume the voluntary gift, and whatever was acquired by the labor or fortune of the son was immediately lost in the property of the father. His stolen goods (his oxen or his children) might be recovered by the same action of theft; 104 and if either had been guilty of a trespass, it was in his own option to compensate the damage, or resign to the injured party the obnoxious animal. At the call of indigence or avarice, the master of a family could dispose of his children or his slaves. But the condition of the slave was far more advantageous, since he regained, by the first manumission, his alienated freedom: the son was again restored to his unnatural father; he might be condemned to servitude a second and a third time, and it was not till after the third sale and deliverance, 105 that he was enfranchised from the domestic power which had been so repeatedly abused. According to his discretion, a father might chastise the real or imaginary faults of his children, by stripes, by imprisonment, by exile, by sending them to the country to work in chains among the meanest of his servants. The majesty of a parent was armed with the power of life and death; 106 and the examples of such bloody executions, which were sometimes praised and never punished, may be traced in the annals of Rome beyond the times of Pompey and Augustus. Neither age, nor rank, nor the consular office, nor the honors of a triumph, could exempt the most illustrious citizen from the bonds of filial subjection: 107 his own descendants were included in the family of their common ancestor; and the claims of adoption were not less sacred or less rigorous than those of nature. Without fear, though not without danger of abuse, the Roman legislators had reposed an unbounded confidence in the sentiments of paternal love; and the oppression was tempered by the assurance that each generation must succeed in its turn to the awful dignity of parent and master.
102 See the patria potestas in the Institutes, (l. i. tit. ix.,) the Pandects, (l. i. tit. vi. vii.,) and the Code, (l. viii. tit. xlvii. xlviii. xlix.) Jus potestatis quod in liberos habemus proprium est civium Romanorum. Nulli enim alii sunt homines, qui talem in liberos habeant potestatem qualem nos habemus.
Note: The newly-discovered Institutes of Gaius name one nation in which the same power was vested in the parent. Nec me praeterit Galatarum gentem credere, in potestate parentum liberos esse. Gaii Instit. edit. 1824, p. 257. — M.]
103 Dionysius Hal. l. ii. p. 94, 95. Gravina (Opp. p. 286) produces the words of the xii. tables. Papinian (in Collatione Legum Roman et Mosaicarum, tit. iv. p. 204) styles this patria potestas, lex regia: Ulpian (ad Sabin. l. xxvi. in Pandect. l. i. tit. vi. leg. 8) says, jus potestatis moribus receptum; and furiosus filium in potestate habebit How sacred — or rather, how absurd!
Note: All this is in strict accordance with the Roman character. — W.]
‡ This parental power was strictly confined to the Roman citizen. The foreigner, or he who had only jus Latii, did not possess it. If a Roman citizen unknowingly married a Latin or a foreign wife, he did not possess this power over his son, because the son, following the legal condition of the mother, was not a Roman citizen. A man, however, alleging sufficient cause for his ignorance, might raise both mother and child to the rights of citizenship. Gaius. p. 30. — M.]
104 Pandect. l. xlvii. tit. ii. leg. 14, No. 13, leg. 38, No. 1. Such was the decision of Ulpian and Paul.]
105 The trina mancipatio is most clearly defined by Ulpian, (Fragment. x. p. 591, 592, edit. Schulting;) and best illustrated in the Antiquities of Heineccius.
Note: The son of a family sold by his father did not become in every respect a slave, he was statu liber; that is to say, on paying the price for which he was sold, he became entirely free. See Hugo, Hist. Section 61 — W.]
106 By Justinian, the old law, the jus necis of the Roman father (Institut. l. iv. tit. ix. No. 7) is reported and reprobated. Some legal vestiges are left in the Pandects (l. xliii. tit. xxix. leg. 3, No. 4) and the Collatio Legum Romanarum et Mosaicarum, (tit. ii. No. 3, p. 189.)]
107 Except on public occasions, and in the actual exercise of his office. In publicis locis atque muneribus, atque actionibus patrum, jura cum filiorum qui in magistratu sunt potestatibus collata interquiescere paullulum et connivere, &c., (Aul. Gellius, Noctes Atticae, ii. 2.) The Lessons of the philosopher Taurus were justified by the old and memorable example of Fabius; and we may contemplate the same story in the style of Livy (xxiv. 44) and the homely idiom of Claudius Quadri garius the annalist.]
The first limitation of paternal power is ascribed to the justice and humanity of Numa; and the maid who, with his father’s consent, had espoused a freeman, was protected from the disgrace of becoming the wife of a slave. In the first ages, when the city was pressed, and often famished, by her Latin and Tuscan neighbors, the sale of children might be a frequent practice; but as a Roman could not legally purchase the liberty of his fellow-citizen, the market must gradually fail, and the trade would be destroyed by the conquests of the republic. An imperfect right of property was at length communicated to sons; and the threefold distinction of profectitious, adventitious, and professional was ascertained by the jurisprudence of the Code and Pandects. 108 Of all that proceeded from the father, he imparted only the use, and reserved the absolute dominion; yet if his goods were sold, the filial portion was excepted, by a favorable interpretation, from the demands of the creditors. In whatever accrued by marriage, gift, or collateral succession, the property was secured to the son; but the father, unless he had been specially excluded, enjoyed the usufruct during his life. As a just and prudent reward of military virtue, the spoils of the enemy were acquired, possessed, and bequeathed by the soldier alone; and the fair analogy was extended to the emoluments of any liberal profession, the salary of public service, and the sacred liberality of the emperor or empress. The life of a citizen was less exposed than his fortune to the abuse of paternal power. Yet his life might be adverse to the interest or passions of an unworthy father: the same crimes that flowed from the corruption, were more sensibly felt by the humanity, of the Augustan age; and the cruel Erixo, who whipped his son till he expired, was saved by the emperor from the just fury of the multitude. 109 The Roman father, from the license of servile dominion, was reduced to the gravity and moderation of a judge. The presence and opinion of Augustus confirmed the sentence of exile pronounced against an intentional parricide by the domestic tribunal of Arius. Adrian transported to an island the jealous parent, who, like a robber, had seized the opportunity of hunting, to assassinate a youth, the incestuous lover of his step-mother. 110 A private jurisdiction is repugnant to the spirit of monarchy; the parent was again reduced from a judge to an accuser; and the magistrates were enjoined by Severus Alexander to hear his complaints and execute his sentence. He could no longer take the life of a son without incurring the guilt and punishment of murder; and the pains of parricide, from which he had been excepted by the Pompeian law, were finally inflicted by the justice of Constantine. 111 The same protection was due to every period of existence; and reason must applaud the humanity of Paulus, for imputing the crime of murder to the father who strangles, or starves, or abandons his new-born infant; or exposes him in a public place to find the mercy which he himself had denied. But the exposition of children was the prevailing and stubborn vice of antiquity: it was sometimes prescribed, often permitted, almost always practised with impunity, by the nations who never entertained the Roman ideas of paternal power; and the dramatic poets, who appeal to the human heart, represent with indifference a popular custom which was palliated by the motives of economy and compassion. 112 If the father could subdue his own feelings, he might escape, though not the censure, at least the chastisement, of the laws; and the Roman empire was stained with the blood of infants, till such murders were included, by Valentinian and his colleagues, in the letter and spirit of the Cornelian law. The lessons of jurisprudence 113 and Christianity had been insufficient to eradicate this inhuman practice, till their gentle influence was fortified by the terrors of capital punishment. 114
108 See the gradual enlargement and security of the filial peculium in the Institutes, (l. ii. tit. ix.,) the Pandects, (l. xv. tit. i. l. xli. tit. i.,) and the Code, (l. iv. tit. xxvi. xxvii.)]
109 The examples of Erixo and Arius are related by Seneca, (de Clementia, i. 14, 15,) the former with horror, the latter with applause.]
110 Quod latronis magis quam patris jure eum interfecit, nam patria potestas in pietate debet non in atrocitate consistere, (Marcian. Institut. l. xix. in Pandect. l. xlviii. tit. ix. leg.5.)]
111 The Pompeian and Cornelian laws de sicariis and parricidis are repeated, or rather abridged, with the last supplements of Alexander Severus, Constantine, and Valentinian, in the Pandects (l. xlviii. tit. viii ix,) and Code, (l. ix. tit. xvi. xvii.) See likewise the Theodosian Code, (l. ix. tit. xiv. xv.,) with Godefroy’s Commentary, (tom. iii. p. 84 — 113) who pours a flood of ancient and modern learning over these penal laws.]
112 When the Chremes of Terence reproaches his wife for not obeying his orders and exposing their infant, he speaks like a father and a master, and silences the scruples of a foolish woman. See Apuleius, (Metamorph. l. x. p. 337, edit. Delphin.)]
113 The opinion of the lawyers, and the discretion of the magistrates, had introduced, in the time of Tacitus, some legal restraints, which might support his contrast of the boni mores of the Germans to the bonae leges alibi — that is to say, at Rome, (de Moribus Germanorum, c. 19.) Tertullian (ad Nationes, l. i. c. 15) refutes his own charges, and those of his brethren, against the heathen jurisprudence.]
114 The wise and humane sentence of the civilian Paul (l. ii. Sententiarum in Pandect, 1. xxv. tit. iii. leg. 4) is represented as a mere moral precept by Gerard Noodt, (Opp. tom. i. in Julius Paulus, p. 567 — 558, and Amica Responsio, p. 591 — 606,) who maintains the opinion of Justus Lipsius, (Opp. tom. ii. p. 409, ad Belgas. cent. i. epist. 85,) and as a positive binding law by Bynkershoek, (de Jure occidendi Liberos, Opp. tom. i. p. 318 — 340. Curae Secundae, p. 391 — 427.) In a learned out angry controversy, the two friends deviated into the opposite extremes.]
Experience has proved, that savages are the tyrants of the female sex, and that the condition of women is usually softened by the refinements of social life. In the hope of a robust progeny, Lycurgus had delayed the season of marriage: it was fixed by Numa at the tender age of twelve years, that the Roman husband might educate to his will a pure and obedient virgin. 115 According to the custom of antiquity, he bought his bride of her parents, and she fulfilled the coemption by purchasing, with three pieces of copper, a just introduction to his house and household deities. A sacrifice of fruits was offered by the pontiffs in the presence of ten witnesses; the contracting parties were seated on the same sheep-skin; they tasted a salt cake of far or rice; and this confarreation, 116 which denoted the ancient food of Italy, served as an emblem of their mystic union of mind and body. But this union on the side of the woman was rigorous and unequal; and she renounced the name and worship of her father’s house, to embrace a new servitude, decorated only by the title of adoption, a fiction of the law, neither rational nor elegant, bestowed on the mother of a family 117 (her proper appellation) the strange characters of sister to her own children, and of daughter to her husband or master, who was invested with the plenitude of paternal power. By his judgment or caprice her behavior was approved, or censured, or chastised; he exercised the jurisdiction of life and death; and it was allowed, that in the cases of adultery or drunkenness, 118 the sentence might be properly inflicted. She acquired and inherited for the sole profit of her lord; and so clearly was woman defined, not as a person, but as a thing, that, if the original title were deficient, she might be claimed, like other movables, by the use and possession of an entire year. The inclination of the Roman husband discharged or withheld the conjugal debt, so scrupulously exacted by the Athenian and Jewish laws: 119 but as polygamy was unknown, he could never admit to his bed a fairer or a more favored partner.
115 Dionys. Hal. l. ii. p. 92, 93. Plutarch, in Numa, p. 140-141.]
116 Among the winter frunenta, the triticum, or bearded wheat; the siligo, or the unbearded; the far, adorea, oryza, whose description perfectly tallies with the rice of Spain and Italy. I adopt this identity on the credit of M. Paucton in his useful and laborious Metrologie, (p. 517 — 529.)]
117 Aulus Gellius (Noctes Atticae, xviii. 6) gives a ridiculous definition of Aelius Melissus, Matrona, quae semel materfamilias quae saepius peperit, as porcetra and scropha in the sow kind. He then adds the genuine meaning, quae in matrimonium vel in manum convenerat.]
118 It was enough to have tasted wine, or to have stolen the key of the cellar, (Plin. Hist. Nat. xiv. 14.)]
119 Solon requires three payments per month. By the Misna, a daily debt was imposed on an idle, vigorous, young husband; twice a week on a citizen; once on a peasant; once in thirty days on a camel-driver; once in six months on a seaman. But the student or doctor was free from tribute; and no wife, if she received a weekly sustenance, could sue for a divorce; for one week a vow of abstinence was allowed. Polygamy divided, without multiplying, the duties of the husband, (Selden, Uxor Ebraica, l. iii. c 6, in his works, vol ii. p. 717 — 720.)]
After the Punic triumphs, the matrons of Rome aspired to the common benefits of a free and opulent republic: their wishes were gratified by the indulgence of fathers and lovers, and their ambition was unsuccessfully resisted by the gravity of Cato the Censor. 120 They declined the solemnities of the old nuptiais; defeated the annual prescription by an absence of three days; and, without losing their name or independence, subscribed the liberal and definite terms of a marriage contract. Of their private fortunes, they communicated the use, and secured the property: the estates of a wife could neither be alienated nor mortgaged by a prodigal husband; their mutual gifts were prohibited by the jealousy of the laws; and the misconduct of either party might afford, under another name, a future subject for an action of theft. To this loose and voluntary compact, religious and civil rights were no longer essential; and, between persons of a similar rank, the apparent community of life was allowed as sufficient evidence of their nuptials. The dignity of marriage was restored by the Christians, who derived all spiritual grace from the prayers of the faithful and the benediction of the priest or bishop. The origin, validity, and duties of the holy institution were regulated by the tradition of the synagogue, the precepts of the gospel, and the canons of general or provincial synods; 121 and the conscience of the Christians was awed by the decrees and censures of their ecclesiastical rulers. Yet the magistrates of Justinian were not subject to the authority of the church: the emperor consulted the unbelieving civilians of antiquity, and the choice of matrimonial laws in the Code and Pandects, is directed by the earthly motives of justice, policy, and the natural freedom of both sexes. 122
120 On the Oppian law we may hear the mitigating speech of Vaerius Flaccus, and the severe censorial oration of the elder Cato, (Liv. xxxiv. l — 8.) But we shall rather hear the polished historian of the eighth, than the rough orators of the sixth, century of Rome. The principles, and even the style, of Cato are more accurately preserved by Aulus Gellius, (x. 23.)]
121 For the system of Jewish and Catholic matrimony, see Selden, Uxor Ebraica, Opp. vol. ii. p. 529 — 860,) Bingham, (Christian Antiquities, l. xxii.,) and Chardon, (Hist. des Sacremens, tom. vi.)]
122 The civil laws of marriage are exposed in the Institutes, (l. i. tit. x.,) the Pandects, (l. xxiii. xxiv. xxv.,) and the Code, (l. v.;) but as the title de ritu nuptiarum is yet imperfect, we are obliged to explore the fragments of Ulpian (tit. ix. p. 590, 591,) and the Collatio Legum Mosaicarum, (tit. xvi. p. 790, 791,) with the notes of Pithaeus and Schulting. They find in the Commentary of Servius (on the 1st Georgia and the 4th Aeneid) two curious passages.]
Besides the agreement of the parties, the essence of every rational contract, the Roman marriage required the previous approbation of the parents. A father might be forced by some recent laws to supply the wants of a mature daughter; but even his insanity was not gradually allowed to supersede the necessity of his consent. The causes of the dissolution of matrimony have varied among the Romans; 123 but the most solemn sacrament, the confarreation itself, might always be done away by rites of a contrary tendency. In the first ages, the father of a family might sell his children, and his wife was reckoned in the number of his children: the domestic judge might pronounce the death of the offender, or his mercy might expel her from his bed and house; but the slavery of the wretched female was hopeless and perpetual, unless he asserted for his own convenience the manly prerogative of divorce. * The warmest applause has been lavished on the virtue of the Romans, who abstained from the exercise of this tempting privilege above five hundred years: 124 but the same fact evinces the unequal terms of a connection in which the slave was unable to renounce her tyrant, and the tyrant was unwilling to relinquish his slave. When the Roman matrons became the equal and voluntary companions of their lords, a new jurisprudence was introduced, that marriage, like other partnerships, might be dissolved by the abdication of one of the associates. In three centuries of prosperity and corruption, this principle was enlarged to frequent practice and pernicious abuse.
Passion, interest, or caprice, suggested daily motives for the dissolution of marriage; a word, a sign, a message, a letter, the mandate of a freedman, declared the separation; the most tender of human connections was degraded to a transient society of profit or pleasure. According to the various conditions of life, both sexes alternately felt the disgrace and injury: an inconstant spouse transferred her wealth to a new family, abandoning a numerous, perhaps a spurious, progeny to the paternal authority and care of her late husband; a beautiful virgin might be dismissed to the world, old, indigent, and friendless; but the reluctance of the Romans, when they were pressed to marriage by Augustus, sufficiently marks, that the prevailing institutions were least favorable to the males. A specious theory is confuted by this free and perfect experiment, which demonstrates, that the liberty of divorce does not contribute to happiness and virtue. The facility of separation would destroy all mutual confidence, and inflame every trifling dispute: the minute difference between a husband and a stranger, which might so easily be removed, might still more easily be forgotten; and the matron, who in five years can submit to the embraces of eight husbands, must cease to reverence the chastity of her own person. 125
123 According to Plutarch, (p. 57,) Romulus allowed only three grounds of a divorce — drunkenness, adultery, and false keys. Otherwise, the husband who abused his supremacy forfeited half his goods to the wife, and half to the goddess Ceres, and offered a sacrifice (with the remainder?) to the terrestrial deities. This strange law was either imaginary or transient.]
* Montesquieu relates and explains this fact in a different marnes Esprit des Loix, l. xvi. c. 16. — G.]
124 In the year of Rome 523, Spurius Carvilius Ruga repudiated a fair, a good, but a barren, wife, (Dionysius Hal. l. ii. p. 93. Plutarch, in Numa, p. 141; Valerius Maximus, l. ii. c. 1; Aulus Gellius, iv. 3.) He was questioned by the censors, and hated by the people; but his divorce stood unimpeached in law.]
125 — Sic fiunt octo mariti Quinque per autumnos. Juvenal, Satir. vi. 20.
A rapid succession, which may yet be credible, as well as the non consulum numero, sed maritorum annos suos computant, of Seneca, (de Beneficiis, iii. 16.) Jerom saw at Rome a triumphant husband bury his twenty-first wife, who had interred twenty-two of his less sturdy predecessors, (Opp. tom. i. p. 90, ad Gerontiam.) But the ten husbands in a month of the poet Martial, is an extravagant hyperbole, (l. 71. epigram 7.)]
Insufficient remedies followed with distant and tardy steps the rapid progress of the evil. The ancient worship of the Romans afforded a peculiar goddess to hear and reconcile the complaints of a married life; but her epithet of Viriplaca, 126 the appeaser of husbands, too clearly indicates on which side submission and repentance were always expected. Every act of a citizen was subject to the judgment of the censors; the first who used the privilege of divorce assigned, at their command, the motives of his conduct; 127 and a senator was expelled for dismissing his virgin spouse without the knowledge or advice of his friends. Whenever an action was instituted for the recovery of a marriage portion, the proetor, as the guardian of equity, examined the cause and the characters, and gently inclined the scale in favor of the guiltless and injured party. Augustus, who united the powers of both magistrates, adopted their different modes of repressing or chastising the license of divorce. 128 The presence of seven Roman witnesses was required for the validity of this solemn and deliberate act: if any adequate provocation had been given by the husband, instead of the delay of two years, he was compelled to refund immediately, or in the space of six months; but if he could arraign the manners of his wife, her guilt or levity was expiated by the loss of the sixth or eighth part of her marriage portion. The Christian princes were the first who specified the just causes of a private divorce; their institutions, from Constantine to Justinian, appear to fluctuate between the custom of the empire and the wishes of the church, 129 and the author of the Novels too frequently reforms the jurisprudence of the Code and Pandects. In the most rigorous laws, a wife was condemned to support a gamester, a drunkard, or a libertine, unless he were guilty of homicide, poison, or sacrilege, in which cases the marriage, as it should seem, might have been dissolved by the hand of the executioner. But the sacred right of the husband was invariably maintained, to deliver his name and family from the disgrace of adultery: the list of mortal sins, either male or female, was curtailed and enlarged by successive regulations, and the obstacles of incurable impotence, long absence, and monastic profession, were allowed to rescind the matrimonial obligation. Whoever transgressed the permission of the law, was subject to various and heavy penalties. The woman was stripped of her wealth and ornaments, without excepting the bodkin of her hair: if the man introduced a new bride into his bed, her fortune might be lawfully seized by the vengeance of his exiled wife. Forfeiture was sometimes commuted to a fine; the fine was sometimes aggravated by transportation to an island, or imprisonment in a monastery; the injured party was released from the bonds of marriage; but the offender, during life, or a term of years, was disabled from the repetition of nuptials. The successor of Justinian yielded to the prayers of his unhappy subjects, and restored the liberty of divorce by mutual consent: the civilians were unanimous, 130 the theologians were divided, 131 and the ambiguous word, which contains the precept of Christ, is flexible to any interpretation that the wisdom of a legislator can demand.
126 Sacellum Viriplacae, (Valerius Maximus, l. ii. c. 1,) in the Palatine region, appears in the time of Theodosius, in the description of Rome by Publius Victor.]
127 Valerius Maximus, l. ii. c. 9. With some propriety he judges divorce more criminal than celibacy: illo namque conjugalia sacre spreta tantum, hoc etiam injuriose tractata.]
128 See the laws of Augustus and his successors, in Heineccius, ad Legem Papiam-Poppaeam, c. 19, in Opp. tom. vi. P. i. p. 323 — 333.]
129 Aliae sunt leges Caesarum, aliae Christi; aliud Papinianus, aliud Paulus nocter praecipit, (Jerom. tom. i. p. 198. Selden, Uxor Ebraica l. iii. c. 31 p. 847 — 853.)]
130 The Institutes are silent; but we may consult the Codes of Theodosius (l. iii. tit. xvi., with Godefroy’s Commentary, tom. i. p. 310 — 315) and Justinian, (l. v. tit. xvii.,) the Pandects (l. xxiv. tit. ii.) and the Novels, (xxii. cxvii. cxxvii. cxxxiv. cxl.) Justinian fluctuated to the last between civil and ecclesiastical law.]
131 In pure Greek, it is not a common word; nor can the proper meaning, fornication, be strictly applied to matrimonial sin. In a figurative sense, how far, and to what offences, may it be extended? Did Christ speak the Rabbinical or Syriac tongue? Of what original word is the translation? How variously is that Greek word translated in the versions ancient and modern! There are two (Mark, x. 11, Luke, xvi. 18) to one (Matthew, xix. 9) that such ground of divorce was not excepted by Jesus. Some critics have presumed to think, by an evasive answer, he avoided the giving offence either to the school of Sammai or to that of Hillel, (Selden, Uxor Ebraica, l. iii. c. 18 — 22, 28, 31.)
Note: But these had nothing to do with the question of a divorce made by judicial authority. — Hugo.]
The freedom of love and marriage was restrained among the Romans by natural and civil impediments. An instinct, almost innate and universal, appears to prohibit the incestuous commerce 132 of parents and children in the infinite series of ascending and descending generations. Concerning the oblique and collateral branches, nature is indifferent, reason mute, and custom various and arbitrary. In Egypt, the marriage of brothers and sisters was admitted without scruple or exception: a Spartan might espouse the daughter of his father, an Athenian, that of his mother; and the nuptials of an uncle with his niece were applauded at Athens as a happy union of the dearest relations. The profane lawgivers of Rome were never tempted by interest or superstition to multiply the forbidden degrees: but they inflexibly condemned the marriage of sisters and brothers, hesitated whether first cousins should be touched by the same interdict; revered the parental character of aunts and uncles, * and treated affinity and adoption as a just imitation of the ties of blood. According to the proud maxims of the republic, a legal marriage could only be contracted by free citizens; an honorable, at least an ingenuous birth, was required for the spouse of a senator: but the blood of kings could never mingle in legitimate nuptials with the blood of a Roman; and the name of Stranger degraded Cleopatra and Berenice, 133 to live the concubines of Mark Antony and Titus. 134 This appellation, indeed, so injurious to the majesty, cannot without indulgence be applied to the manners, of these Oriental queens. A concubine, in the strict sense of the civilians, was a woman of servile or plebeian extraction, the sole and faithful companion of a Roman citizen, who continued in a state of celibacy. Her modest station, below the honors of a wife, above the infamy of a prostitute, was acknowledged and approved by the laws: from the age of Augustus to the tenth century, the use of this secondary marriage prevailed both in the West and East; and the humble virtues of a concubine were often preferred to the pomp and insolence of a noble matron. In this connection, the two Antonines, the best of princes and of men, enjoyed the comforts of domestic love: the example was imitated by many citizens impatient of celibacy, but regardful of their families. If at any time they desired to legitimate their natural children, the conversion was instantly performed by the celebration of their nuptials with a partner whose faithfulness and fidelity they had already tried. * By this epithet of natural, the offspring of the concubine were distinguished from the spurious brood of adultery, prostitution, and incest, to whom Justinian reluctantly grants the necessary aliments of life; and these natural children alone were capable of succeeding to a sixth part of the inheritance of their reputed father. According to the rigor of law, bastards were entitled only to the name and condition of their mother, from whom they might derive the character of a slave, a stranger, or a citizen. The outcasts of every family were adopted without reproach as the children of the state. 135 †
132 The principles of the Roman jurisprudence are exposed by Justinian, (Institut. t. i. tit. x.;) and the laws and manners of the different nations of antiquity concerning forbidden degrees, &c., are copiously explained by Dr. Taylor in his Elements of Civil Law, (p. 108, 314 — 339,) a work of amusing, though various reading; but which cannot be praised for philosophical precision.]
* According to the earlier law, (Gaii Instit. p. 27,) a man might marry his niece on the brother’s, not on the sister’s, side. The emperor Claudius set the example of the former. In the Institutes, this distinction was abolished and both declared illegal. — M.]
133 When her father Agrippa died, (A.D. 44,) Berenice was sixteen years of age, (Joseph. tom. i. Antiquit. Judaic. l. xix. c. 9, p. 952, edit. Havercamp.) She was therefore above fifty years old when Titus (A.D. 79) invitus invitam invisit. This date would not have adorned the tragedy or pastoral of the tender Racine.]
134 The Aegyptia conjux of Virgil (Aeneid, viii. 688) seems to be numbered among the monsters who warred with Mark Antony against Augustus, the senate, and the gods of Italy.]
* The Edict of Constantine first conferred this right; for Augustus had prohibited the taking as a concubine a woman who might be taken as a wife; and if marriage took place afterwards, this marriage made no change in the rights of the children born before it; recourse was then had to adoption, properly called arrogation. — G.]
135 The humble but legal rights of concubines and natural children are stated in the Institutes, (l. i. tit. x.,) the Pandects, (l. i. tit. vii.,) the Code, (l. v. tit. xxv.,) and the Novels, (lxxiv. lxxxix.) The researches of Heineccius and Giannone, (ad Legem Juliam et Papiam-Poppaeam, c. iv. p. 164 — 175. Opere Posthume, p. 108 — 158) illustrate this interesting and domestic subject.]
† See, however, the two fragments of laws in the newly discovered extracts from the Theodosian Code, published by M. A. Peyron, at Turin. By the first law of Constantine, the legitimate offspring could alone inherit; where there were no near legitimate relatives, the inheritance went to the fiscus. The son of a certain Licinianus, who had inherited his father’s property under the supposition that he was legitimate, and had been promoted to a place of dignity, was to be degraded, his property confiscated, himself punished with stripes and imprisonment. By the second, all persons, even of the highest rank, senators, perfectissimi, decemvirs, were to be declared infamous, and out of the protection of the Roman law, if born ex ancilla, vel ancillae filia, vel liberta, vel libertae filia, sive Romana facta, seu Latina, vel scaenicae filia, vel ex tabernaria, vel ex tabernariae filia, vel humili vel abjecta, vel lenonis, aut arenarii filia, vel quae mercimoniis publicis praefuit. Whatever a fond father had conferred on such children was revoked, and either restored to the legitimate children, or confiscated to the state; the mothers, who were guily of thus poisoning the minds of the fathers, were to be put to the torture (tormentis subici jubemus.) The unfortunate son of Licinianus, it appears from this second law, having fled, had been taken, and was ordered to be kept in chains to work in the Gynaeceum at Carthage. Cod. Theodor ab. A. Person, 87 — 90. — M.]
The relation of guardian and ward, or in Roman words of tutor and pupil, which covers so many titles of the Institutes and Pandects, 136 is of a very simple and uniform nature. The person and property of an orphan must always be trusted to the custody of some discreet friend. If the deceased father had not signified his choice, the agnats, or paternal kindred of the nearest degree, were compelled to act as the natural guardians: the Athenians were apprehensive of exposing the infant to the power of those most interested in his death; but an axiom of Roman jurisprudence has pronounced, that the charge of tutelage should constantly attend the emolument of succession. If the choice of the father, and the line of consanguinity, afforded no efficient guardian, the failure was supplied by the nomination of the praetor of the city, or the president of the province. But the person whom they named to this public office might be legally excused by insanity or blindness, by ignorance or inability, by previous enmity or adverse interest, by the number of children or guardianships with which he was already burdened, and by the immunities which were granted to the useful labors of magistrates, lawyers, physicians, and professors. Till the infant could speak, and think, he was represented by the tutor, whose authority was finally determined by the age of puberty. Without his consent, no act of the pupil could bind himself to his own prejudice, though it might oblige others for his personal benefit. It is needless to observe, that the tutor often gave security, and always rendered an account, and that the want of diligence or integrity exposed him to a civil and almost criminal action for the violation of his sacred trust. The age of puberty had been rashly fixed by the civilians at fourteen; * but as the faculities of the mind ripen more slowly than those of the body, a curator was interposed to guard the fortunes of a Roman youth from his own inexperience and headstrong passions. Such a trustee had been first instituted by the praetor, to save a family from the blind havoc of a prodigal or madman; and the minor was compelled, by the laws, to solicit the same protection, to give validity to his acts till he accomplished the full period of twenty-five years. Women were condemned to the perpetual tutelage of parents, husbands, or guardians; a sex created to please and obey was never supposed to have attained the age of reason and experience. Such, at least, was the stern and haughty spirit of the ancient law, which had been insensibly mollified before the time of Justinian.
136 See the article of guardians and wards in the Institutes, (l. i. tit. xiii. — xxvi.,) the Pandects, (l. xxvi. xxvii.,) and the Code, (l. v. tit. xxviii. — lxx.)]
* Gibbon accuses the civilians of having “rashly fixed the age of puberty at twelve or fourteen years.” It was not so; before Justinian, no law existed on this subject. Ulpian relates the discussions which took place on this point among the different sects of civilians. See the Institutes, l. i. tit. 22, and the fragments of Ulpian. Nor was the curatorship obligatory for all minors. — W.]
II. The original right of property can only be justified by the accident or merit of prior occupancy; and on this foundation it is wisely established by the philosophy of the civilians. 137 The savage who hollows a tree, inserts a sharp stone into a wooden handle, or applies a string to an elastic branch, becomes in a state of nature the just proprietor of the canoe, the bow, or the hatchet. The materials were common to all, the new form, the produce of his time and simple industry, belongs solely to himself. His hungry brethren cannot, without a sense of their own injustice, extort from the hunter the game of the forest overtaken or slain by his personal strength and dexterity. If his provident care preserves and multiplies the tame animals, whose nature is tractable to the arts of education, he acquires a perpetual title to the use and service of their numerous progeny, which derives its existence from him alone. If he encloses and cultivates a field for their sustenance and his own, a barren waste is converted into a fertile soil; the seed, the manure, the labor, create a new value, and the rewards of harvest are painfully earned by the fatigues of the revolving year. In the successive states of society, the hunter, the shepherd, the husbandman, may defend their possessions by two reasons which forcibly appeal to the feelings of the human mind: that whatever they enjoy is the fruit of their own industry; and that every man who envies their felicity, may purchase similar acquisitions by the exercise of similar diligence. Such, in truth, may be the freedom and plenty of a small colony cast on a fruitful island. But the colony multiplies, while the space still continues the same; the common rights, the equal inheritance of mankind. are engrossed by the bold and crafty; each field and forest is circumscribed by the landmarks of a jealous master; and it is the peculiar praise of the Roman jurisprudence, that i asserts the claim of the first occupant to the wild animals of the earth, the air, and the waters. In the progress from primitive equity to final injustice, the steps are silent, the shades are almost imperceptible, and the absolute monopoly is guarded by positive laws and artificial reason. The active, insatiate principle of self-love can alone supply the arts of life and the wages of industry; and as soon as civil government and exclusive property have been introduced, they become necessary to the existence of the human race. Except in the singular institutions of Sparta, the wisest legislators have disapproved an agrarian law as a false and dangerous innovation. Among the Romans, the enormous disproportion of wealth surmounted the ideal restraints of a doubtful tradition, and an obsolete statute; a tradition that the poorest follower of Romulus had been endowed with the perpetual inheritance of two jugera; 138 a statute which confined the richest citizen to the measure of five hundred jugera, or three hundred and twelve acres of land. The original territory of Rome consisted only of some miles of wood and meadow along the banks of the Tyber; and domestic exchange could add nothing to the national stock. But the goods of an alien or enemy were lawfully exposed to the first hostile occupier; the city was enriched by the profitable trade of war; and the blood of her sons was the only price that was paid for the Volscian sheep, the slaves of Briton, or the gems and gold of Asiatic kingdoms. In the language of ancient jurisprudence, which was corrupted and forgotten before the age of Justinian, these spoils were distinguished by the name of manceps or manicipium, taken with the hand; and whenever they were sold or emancipated, the purchaser required some assurance that they had been the property of an enemy, and not of a fellow — citizen. 139 A citizen could only forfeit his rights by apparent dereliction, and such dereliction of a valuable interest could not easily be presumed. Yet, according to the Twelve Tables, a prescription of one year for movables, and of two years for immovables, abolished the claim of the ancient master, if the actual possessor had acquired them by a fair transaction from the person whom he believed to be the lawful proprietor. 140 Such conscientious injustice, without any mixture of fraud or force could seldom injure the members of a small republic; but the various periods of three, of ten, or of twenty years, determined by Justinian, are more suitable to the latitude of a great empire. It is only in the term of prescription that the distinction of real and personal fortune has been remarked by the civilians; and their general idea of property is that of simple, uniform, and absolute dominion. The subordinate exceptions of use, of usufruct, 141 of servitude, 142 imposed for the benefit of a neighbor on lands and houses, are abundantly explained by the professors of jurisprudence. The claims of property, as far as they are altered by the mixture, the division, or the transformation of substances, are investigated with metaphysical subtilty by the same civilians.
137 Institut. l. ii. tit i. ii. Compare the pure and precise reasoning of Caius and Heineccius (l. ii. tit. i. p. 69 — 91) with the loose prolixity of Theophilus, (p. 207 — 265.) The opinions of Ulpian are preserved in the Pandects, (l. i. tit. viii. leg. 41, No. 1.)]
138 The heredium of the first Romans is defined by Varro, (de Re Rustica, l. i. c. ii. p. 141, c. x. p. 160, 161, edit. Gesner,) and clouded by Pliny’s declamation, (Hist. Natur. xviii. 2.) A just and learned comment is given in the Administration des Terres chez les Romains, (p. 12 — 66.)
Note: On the duo jugera, compare Niebuhr, vol. i. p. 337. — M.]
139 The res mancipi is explained from faint and remote lights by Ulpian (Fragment. tit. xviii. p. 618, 619) and Bynkershoek, (Opp tom. i. p. 306 — 315.) The definition is somewhat arbitrary; and as none except myself have assigned a reason, I am diffident of my own.]
140 From this short prescription, Hume (Essays, vol. i. p. 423) infers that there could not then be more order and settlement in Italy than now amongst the Tartars. By the civilian of his adversary Wallace, he is reproached, and not without reason, for overlooking the conditions, (Institut. l. ii. tit. vi.)
Note: Gibbon acknowledges, in the former note, the obscurity of his views with regard to the res mancipi. The interpreters, who preceded him, are not agreed on this point, one of the most difficult in the ancient Roman law. The conclusions of Hume, of which the author here speaks, are grounded on false assumptions. Gibbon had conceived very inaccurate notions of Property among the Romans, and those of many authors in the present day are not less erroneous. We think it right, in this place, to develop the system of property among the Romans, as the result of the study of the extant original authorities on the ancient law, and as it has been demonstrated, recognized, and adopted by the most learned expositors of the Roman law. Besides the authorities formerly known, such as the Fragments of Ulpian, t. xix. and t. i. 16. Theoph. Paraph. i. 5, 4, may be consulted the Institutes of Gaius, i. 54, and ii. 40, et seq.
The Roman laws protected all property acquired in a lawful manner. They imposed on those who had invaded it, the obligation of making restitution and reparation of all damage caused by that invasion; they punished it moreover, in many cases, by a pecuniary fine. But they did not always grant a recovery against the third person, who had become bona fide possessed of the property. He who had obtained possession of a thing belonging to another, knowing nothing of the prior rights of that person, maintained the possession. The law had expressly determined those cases, in which it permitted property to be reclaimed from an innocent possessor. In these cases possession had the characters of absolute proprietorship, called mancipium, jus Quiritium. To possess this right, it was not sufficient to have entered into possession of the thing in any manner; the acquisition was bound to have that character of publicity, which was given by the observation of solemn forms, prescribed by the laws, or the uninterrupted exercise of proprietorship during a certain time: the Roman citizen alone could acquire this proprietorship. Every other kind of possession, which might be named imperfect proprietorship, was called “in bonis habere.” It was not till after the time of Cicero that the general name of Dominium was given to all proprietorship.
It was then the publicity which constituted the distinctive character of absolute dominion. This publicity was grounded on the mode of acquisition, which the moderns have called Civil, (Modi adquirendi Civiles.) These modes of acquisition were,
1. Mancipium or mancipatio, which was nothing but the solemn delivering over of the thing in the presence of a determinate number of witnesses and a public officer; it was from this probably that proprietorship was named,
2. In jure cessio, which was a solemn delivering over before the praetor.
3. Adjudicatio, made by a judge, in a case of partition.
4. Lex, which comprehended modes of acquiring in particular cases determined by law; probably the law of the xii. tables; for instance, the sub corona emptio and the legatum.
5. Usna, called afterwards usacapio, and by the moderns prescription.
This was only a year for movables; two years for things not movable. Its primary object was altogether different from that of prescription in the present day. It was originally introduced in order to transform the simple possession of a thing (in bonis habere) into Roman proprietorship. The public and uninterrupted possession of a thing, enjoyed for the space of one or two years, was sufficient to make known to the inhabitants of the city of Rome to whom the thing belonged. This last mode of acquisition completed the system of civil acquisitions. by legalizing. as it were, every other kind of acquisition which was not conferred, from the commencement, by the Jus Quiritium. V. Ulpian. Fragm. i. 16. Gaius, ii. 14. We believe, according to Gaius, 43, that this usucaption was extended to the case where a thing had been acquired from a person not the real proprietor; and that according to the time prescribed, it gave to the possessor the Roman proprietorship. But this does not appear to have been the original design of this Institution. Caeterum etiam earum rerum usucapio nobis competit, quae non a domino nobis tradita fuerint, si modo eas bona fide acceperimus Gaius, l ii. 43.
As to things of smaller value, or those which it was difficult to distinguish from each other, the solemnities of which we speak were not requisite to obtain legal proprietorship.
In this case simple delivery was sufficient.
In proportion to the aggrandizement of the Republic, this latter principle became more important from the increase of the commerce and wealth of the state. It was necessary to know what were those things of which absolute property might be acquired by simple delivery, and what, on the contrary, those, the acquisition of which must be sanctioned by these solemnities. This question was necessarily to be decided by a general rule; and it is this rule which establishes the distinction between res mancipi and nec mancipi, a distinction about which the opinions of modern civilians differ so much that there are above ten conflicting systems on the subject. The system which accords best with a sound interpretation of the Roman laws, is that proposed by M. Trekel of Hamburg, and still further developed by M. Hugo, who has extracted it in the Magazine of Civil Law, vol. ii. p. 7.
This is the system now almost universally adopted. Res mancipi (by contraction for mancipii) were things of which the absolute property (Jus Quiritium) might be acquired only by the solemnities mentioned above, at least by that of mancipation, which was, without doubt, the most easy and the most usual. Gaius, ii. 25. As for other things, the acquisition of which was not subject to these forms, in order to confer absolute right, they were called res nec mancipi. See Ulpian, Fragm. xix. 1. 3, 7.
Ulpian and Varro enumerate the different kinds of res mancipi. Their enumerations do not quite agree; and various methods of reconciling them have been attempted. The authority of Ulpian, however, who wrote as a civilian, ought to have the greater weight on this subject.
But why are these things alone res mancipi? This is one of the questions which have been most frequently agitated, and on which the opinions of civilians are most divided. M. Hugo has resolved it in the most natural and satisfactory manner. “All things which were easily known individually, which were of great value, with which the Romans were acquainted, and which they highly appreciated, were res mancipi. Of old mancipation or some other solemn form was required for the acquisition of these things, an account of their importance. Mancipation served to prove their acquisition, because they were easily distinguished one from the other.” On this great historical discussion consult the Magazine of Civil Law by M. Hugo, vol. ii. p. 37, 38; the dissertation of M. J. M. Zachariae, de Rebus Mancipi et nec Mancipi Conjecturae, p. 11. Lipsiae, 1807; the History of Civil Law by M. Hugo; and my Institutiones Juris Romani Privati p. 108, 110.
As a general rule, it may be said that all things are res nec mancipi; the res mancipi are the exception to this principle.
The praetors changed the system of property by allowing a person, who had a thing in bonis, the right to recover before the prescribed term of usucaption had conferred absolute proprietorship. (Pauliana in rem actio.) Justinian went still further, in times when there was no longer any distinction between a Roman citizen and a stranger. He granted the right of recovering all things which had been acquired, whether by what were called civil or natural modes of acquisition, Cod. l. vii. t. 25, 31. And he so altered the theory of Gaius in his Institutes, ii. 1, that no trace remains of the doctrine taught by that civilian. — W.]
141 See the Institutes (l. i. tit. iv. v.) and the Pandects, (l. vii.) Noodt has composed a learned and distinct treatise de Usufructu, (Opp. tom. i. p. 387 — 478.)]
142 The questions de Servitutibus are discussed in the Institutes (l. ii. tit. iii.) and Pandects, (l. viii.) Cicero (pro Murena, c. 9) and Lactantius (Institut. Divin. l. i. c. i.) affect to laugh at the insignificant doctrine, de aqua de pluvia arcenda, &c. Yet it might be of frequent use among litigious neighbors, both in town and country.]
The personal title of the first proprietor must be determined by his death: but the possession, without any appearance of change, is peaceably continued in his children, the associates of his toil, and the partners of his wealth. This natural inheritance has been protected by the legislators of every climate and age, and the father is encouraged to persevere in slow and distant improvements, by the tender hope, that a long posterity will enjoy the fruits of his labor. The principle of hereditary succession is universal; but the order has been variously established by convenience or caprice, by the spirit of national institutions, or by some partial example which was originally decided by fraud or violence. The jurisprudence of the Romans appear to have deviated from the inequality of nature much less than the Jewish, 143 the Athenian, 144 or the English institutions. 145 On the death of a citizen, all his descendants, unless they were already freed from his paternal power, were called to the inheritance of his possessions. The insolent prerogative of primogeniture was unknown; the two sexes were placed on a just level; all the sons and daughters were entitled to an equal portion of the patrimonial estate; and if any of the sons had been intercepted by a premature death, his person was represented, and his share was divided, by his surviving children. On the failure of the direct line, the right of succession must diverge to the collateral branches. The degrees of kindred 146 are numbered by the civilians, ascending from the last possessor to a common parent, and descending from the common parent to the next heir: my father stands in the first degree, my brother in the second, his children in the third, and the remainder of the series may be conceived by a fancy, or pictured in a genealogical table. In this computation, a distinction was made, essential to the laws and even the constitution of Rome; the agnats, or persons connected by a line of males, were called, as they stood in the nearest degree, to an equal partition; but a female was incapable of transmitting any legal claims; and the cognats of every rank, without excepting the dear relation of a mother and a son, were disinherited by the Twelve Tables, as strangers and aliens. Among the Romans agens or lineage was united by a common name and domestic rites; the various cognomens or surnames of Scipio, or Marcellus, distinguished from each other the subordinate branches or families of the Cornelian or Claudian race: the default of the agnats, of the same surname, was supplied by the larger denomination of gentiles; and the vigilance of the laws maintained, in the same name, the perpetual descent of religion and property. A similar principle dictated the Voconian law, 147 which abolished the right of female inheritance. As long as virgins were given or sold in marriage, the adoption of the wife extinguished the hopes of the daughter. But the equal succession of independent matrons supported their pride and luxury, and might transport into a foreign house the riches of their fathers.
While the maxims of Cato 148 were revered, they tended to perpetuate in each family a just and virtuous mediocrity: till female blandishments insensibly triumphed; and every salutary restraint was lost in the dissolute greatness of the republic. The rigor of the decemvirs was tempered by the equity of the praetors. Their edicts restored and emancipated posthumous children to the rights of nature; and upon the failure of the agnats, they preferred the blood of the cognats to the name of the gentiles whose title and character were insensibly covered with oblivion. The reciprocal inheritance of mothers and sons was established in the Tertullian and Orphitian decrees by the humanity of the senate. A new and more impartial order was introduced by the Novels of Justinian, who affected to revive the jurisprudence of the Twelve Tables. The lines of masculine and female kindred were confounded: the descending, ascending, and collateral series was accurately defined; and each degree, according tot he proximity of blood and affection, succeeded to the vacant possessions of a Roman citizen. 149
143 Among the patriarchs, the first-born enjoyed a mystic and spiritual primogeniture, (Genesis, xxv. 31.) In the land of Canaan, he was entitled to a double portion of inheritance, (Deuteronomy, xxi. 17, with Le Clerc’s judicious Commentary.)]
144 At Athens, the sons were equal; but the poor daughters were endowed at the discretion of their brothers. See the pleadings of Isaeus, (in the viith volume of the Greek Orators,) illustrated by the version and comment of Sir William Jones, a scholar, a lawyer, and a man of genius.]
145 In England, the eldest son also inherits all the land; a law, says the orthodox Judge Blackstone, (Commentaries on the Laws of England, vol. ii. p. 215,) unjust only in the opinion of younger brothers. It may be of some political use in sharpening their industry.]
146 Blackstone’s Tables (vol. ii. p. 202) represent and compare the decrees of the civil with those of the canon and common law. A separate tract of Julius Paulus, de gradibus et affinibus, is inserted or abridged in the Pandects, (l. xxxviii. tit. x.) In the viith degrees he computes (No. 18) 1024 persons.]
147 The Voconian law was enacted in the year of Rome 584. The younger Scipio, who was then 17 years of age, (Frenshemius, Supplement. Livian. xlvi. 40,) found an occasion of exercising his generosity to his mother, sisters, &c. (Polybius, tom. ii. l. xxxi. p. 1453 — 1464, edit Gronov., a domestic witness.)]
148 Legem Voconiam (Ernesti, Clavis Ciceroniana) magna voce bonis lateribus (at lxv. years of age) suasissem, says old Cato, (de Senectute, c. 5,) Aulus Gellius (vii. 13, xvii. 6) has saved some passages.]
149 See the law of succession in the Institutes of Caius, (l. ii. tit. viii. p. 130 — 144,) and Justinian, (l. iii. tit. i. — vi., with the Greek version of Theophilus, p. 515 — 575, 588 — 600,) the Pandects, (l. xxxviii. tit. vi. — xvii.,) the Code, (l. vi. tit. lv. — lx.,) and the Novels, (cxviii.)]
The order of succession is regulated by nature, or at least by the general and permanent reason of the lawgiver: but this order is frequently violated by the arbitrary and partial wills, which prolong the dominion of the testator beyond the grave. 150 In the simple state of society, this last use or abuse of the right of property is seldom indulged: it was introduced at Athens by the laws of Solon; and the private testaments of the father of a family are authorized by the Twelve Tables. Before the time of the decemvirs, 151 a Roman citizen exposed his wishes and motives to the assembly of the thirty curiae or parishes, and the general law of inheritance was suspended by an occasional act of the legislature. After the permission of the decemvirs, each private lawgiver promulgated his verbal or written testament in the presence of five citizens, who represented the five classes of the Roman people; a sixth witness attested their concurrence; a seventh weighed the copper money, which was paid by an imaginary purchaser; and the estate was emancipated by a fictitious sale and immediate release. This singular ceremony, 152 which excited the wonder of the Greeks, was still practised in the age of Severus; but the praetors had already approved a more simple testament, for which they required the seals and signatures of seven witnesses, free from all legal exception, and purposely summoned for the execution of that important act. A domestic monarch, who reigned over the lives and fortunes of his children, might distribute their respective shares according to the degrees of their merit or his affection; his arbitrary displeasure chastised an unworthy son by the loss of his inheritance, and the mortifying preference of a stranger. But the experience of unnatural parents recommended some limitations of their testamentary powers. A son, or, by the laws of Justinian, even a daughter, could no longer be disinherited by their silence: they were compelled to name the criminal, and to specify the offence; and the justice of the emperor enumerated the sole causes that could justify such a violation of the first principles of nature and society. 153 Unless a legitimate portion, a fourth part, had been reserved for the children, they were entitled to institute an action or complaint of inofficious testament; to suppose that their father’s understanding was impaired by sickness or age; and respectfully to appeal from his rigorous sentence to the deliberate wisdom of the magistrate. In the Roman jurisprudence, an essential distinction was admitted between the inheritance and the legacies. The heirs who succeeded to the entire unity, or to any of the twelve fractions of the substance of the testator, represented his civil and religious character, asserted his rights, fulfilled his obligations, and discharged the gifts of friendship or liberality, which his last will had bequeathed under the name of legacies. But as the imprudence or prodigality of a dying man might exhaust the inheritance, and leave only risk and labor to his successor, he was empowered to retain the Falcidian portion; to deduct, before the payment of the legacies, a clear fourth for his own emolument. A reasonable time was allowed to examine the proportion between the debts and the estate, to decide whether he should accept or refuse the testament; and if he used the benefit of an inventory, the demands of the creditors could not exceed the valuation of the effects. The last will of a citizen might be altered during his life, or rescinded after his death: the persons whom he named might die before him, or reject the inheritance, or be exposed to some legal disqualification. In the contemplation of these events, he was permitted to substitute second and third heirs, to replace each other according to the order of the testament; and the incapacity of a madman or an infant to bequeath his property might be supplied by a similar substitution. 154 But the power of the testator expired with the acceptance of the testament: each Roman of mature age and discretion acquired the absolute dominion of his inheritance, and the simplicity of the civil law was never clouded by the long and intricate entails which confine the happiness and freedom of unborn generations.
150 That succession was the rule, testament the exception, is proved by Taylor, (Elements of Civil Law, p. 519 — 527, (a learned, rambling, spirited writer. In the iid and iiid books, the method of the Institutes is doubtless preposterous; and the Chancellor Daguesseau (Oeuvres, tom. i. p. 275) wishes his countryman Domat in the place of Tribonian. Yet covenants before successions is not surely the natural order of civil laws.]
151 Prior examples of testaments are perhaps fabulous.
At Athens a childless father only could make a will, (Plutarch, in Solone, tom. i. p. 164. See Isaeus and Jones.)]
152 The testament of Augustus is specified by Suetonius, (in August, c. 101, in Neron. c. 4,) who may be studied as a code of Roman antiquities. Plutarch (Opuscul. tom. ii. p. 976) is surprised. The language of Ulpian (Fragment. tit. xx. p. 627, edit. Schulting) is almost too exclusive — solum in usu est.]
153 Justinian (Novell. cxv. No. 3, 4) enumerates only the public and private crimes, for which a son might likewise disinherit his father.
Note: Gibbon has singular notions on the provisions of Novell. cxv. 3, 4, which probably he did not clearly understand. — W]
154 The substitutions of fidei-commissaires of the modern civil law is a feudal idea grafted on the Roman jurisprudence, and bears scarcely any resemblance to the ancient fidei-commissa, (Institutions du Droit Francois, tom. i. p. 347 — 383. Denissart, Decisions de Jurisprudence, tom. iv. p. 577 — 604.) They were stretched to the fourth degree by an abuse of the clixth Novel; a partial, perplexed, declamatory law.]
Conquest and the formalities of law established the use of codicils. If a Roman was surprised by death in a remote province of the empire, he addressed a short epistle to his legitimate or testamentary heir; who fulfilled with honor, or neglected with impunity, this last request, which the judges before the age of Augustus were not authorized to enforce. A codicil might be expressed in any mode, or in any language; but the subscription of five witnesses must declare that it was the genuine composition of the author. His intention, however laudable, was sometimes illegal; and the invention of fidei-commissa, or trusts, arose form the struggle between natural justice and positive jurisprudence. A stranger of Greece or Africa might be the friend or benefactor of a childless Roman, but none, except a fellow-citizen, could act as his heir. The Voconian law, which abolished female succession, restrained the legacy or inheritance of a woman to the sum of one hundred thousand sesterces; 155 and an only daughter was condemned almost as an alien in her father’s house. The zeal of friendship, and parental affection, suggested a liberal artifice: a qualified citizen was named in the testament, with a prayer or injunction that he would restore the inheritance to the person for whom it was truly intended. Various was the conduct of the trustees in this painful situation: they had sworn to observe the laws of their country, but honor prompted them to violate their oath; and if they preferred their interest under the mask of patriotism, they forfeited the esteem of every virtuous mind. The declaration of Augustus relieved their doubts, gave a legal sanction to confidential testaments and codicils, and gently unravelled the forms and restraints of the republican jurisprudence. 156 But as the new practice of trusts degenerated into some abuse, the trustee was enabled, by the Trebellian and Pegasian decrees, to reserve one fourth of the estate, or to transfer on the head of the real heir all the debts and actions of the succession. The interpretation of testaments was strict and literal; but the language of trusts and codicils was delivered from the minute and technical accuracy of the civilians. 157
155 Dion Cassius (tom. ii. l. lvi. p. 814, with Reimar’s Notes) specifies in Greek money the sum of 25,000 drachms.]
156 The revolutions of the Roman laws of inheritance are finely, though sometimes fancifully, deduced by Montesquieu, (Esprit des Loix, l. xxvii.)]
157 Of the civil jurisprudence of successions, testaments, codicils, legacies, and trusts, the principles are ascertained in the Institutes of Caius, (l. ii. tit. ii. — ix. p. 91 — 144,) Justinian, (l. ii. tit. x. — xxv.,) and Theophilus, (p. 328 — 514;) and the immense detail occupies twelve books (xxviii. — xxxix.) of the Pandects.]
III. The general duties of mankind are imposed by their public and private relations: but their specific obligations to each other can only be the effect of, 1. a promise, 2. a benefit, or 3. an injury: and when these obligations are ratified by law, the interested party may compel the performance by a judicial action. On this principle, the civilians of every country have erected a similar jurisprudence, the fair conclusion of universal reason and justice. 158
158 The Institutes of Caius, (l. ii. tit. ix. x. p. 144 — 214,) of Justinian, (l. iii. tit. xiv. — xxx. l. iv. tit. i. — vi.,) and of Theophilus, (p. 616 — 837,) distinguish four sorts of obligations — aut re, aut verbis, aut literis aut consensu: but I confess myself partial to my own division.
Note: It is not at all applicable to the Roman system of contracts, even if I were allowed to be good. — M.]
1. The goddess of faith (of human and social faith) was worshipped, not only in her temples, but in the lives of the Romans; and if that nation was deficient in the more amiable qualities of benevolence and generosity, they astonished the Greeks by their sincere and simple performance of the most burdensome engagements. 159 Yet among the same people, according to the rigid maxims of the patricians and decemvirs, a naked pact, a promise, or even an oath, did not create any civil obligation, unless it was confirmed by the legal form of a stipulation. Whatever might be the etymology of the Latin word, it conveyed the idea of a firm and irrevocable contract, which was always expressed in the mode of a question and answer. Do you promise to pay me one hundred pieces of gold? was the solemn interrogation of Seius. I do promise, was the reply of Sempronius. The friends of Sempronius, who answered for his ability and inclination, might be separately sued at the option of Seius; and the benefit of partition, or order of reciprocal actions, insensibly deviated from the strict theory of stipulation. The most cautious and deliberate consent was justly required to sustain the validity of a gratuitous promise; and the citizen who might have obtained a legal security, incurred the suspicion of fraud, and paid the forfeit of his neglect. But the ingenuity of the civilians successfully labored to convert simple engagements into the form of solemn stipulations. The praetors, as the guardians of social faith, admitted every rational evidence of a voluntary and deliberate act, which in their tribunal produced an equitable obligation, and for which they gave an action and a remedy. 160
159 How much is the cool, rational evidence of Polybius (l. vi. p. 693, l. xxxi. p. 1459, 1460) superior to vague, indiscriminate applause — omnium maxime et praecipue fidem coluit, (A. Gellius, xx. l.)]
160 The Jus Praetorium de Pactis et Transactionibus is a separate and satisfactory treatise of Gerard Noodt, (Opp. tom. i. p. 483 — 564.) And I will here observe, that the universities of Holland and Brandenburg, in the beginning of the present century, appear to have studied the civil law on the most just and liberal principles.
Note: Simple agreements (pacta) formed as valid an obligation as a solemn contract. Only an action, or the right to a direct judicial prosecution, was not permitted in every case of compact. In all other respects, the judge was bound to maintain an agreement made by pactum. The stipulation was a form common to every kind of agreement, by which the right of action was given to this. — W.]
2. The obligations of the second class, as they were contracted by the delivery of a thing, are marked by the civilians with the epithet of real. 161 A grateful return is due to the author of a benefit; and whoever is intrusted with the property of another, has bound himself to the sacred duty of restitution. In the case of a friendly loan, the merit of generosity is on the side of the lender only; in a deposit, on the side of the receiver; but in a pledge, and the rest of the selfish commerce of ordinary life, the benefit is compensated by an equivalent, and the obligation to restore is variously modified by the nature of the transaction. The Latin language very happily expresses the fundamental difference between the commodatum and the mutuum, which our poverty is reduced to confound under the vague and common appellation of a loan. In the former, the borrower was obliged to restore the same individual thing with which he had been accommodated for the temporary supply of his wants; in the latter, it was destined for his use and consumption, and he discharged this mutual engagement, by substituting the same specific value according to a just estimation of number, of weight, and of measure. In the contract of sale, the absolute dominion is transferred to the purchaser, and he repays the benefit with an adequate sum of gold or silver, the price and universal standard of all earthly possessions. The obligation of another contract, that of location, is of a more complicated kind. Lands or houses, labor or talents, may be hired for a definite term; at the expiration of the time, the thing itself must be restored to the owner, with an additional reward for the beneficial occupation and employment. In these lucrative contracts, to which may be added those of partnership and commissions, the civilians sometimes imagine the delivery of the object, and sometimes presume the consent of the parties. The substantial pledge has been refined into the invisible rights of a mortgage or hypotheca; and the agreement of sale, for a certain price, imputes, from that moment, the chances of gain or loss to the account of the purchaser. It may be fairly supposed, that every man will obey the dictates of his interest; and if he accepts the benefit, he is obliged to sustain the expense, of the transaction. In this boundless subject, the historian will observe the location of land and money, the rent of the one and the interest of the other, as they materially affect the prosperity of agriculture and commerce. The landlord was often obliged to advance the stock and instruments of husbandry, and to content himself with a partition of the fruits. If the feeble tenant was oppressed by accident, contagion, or hostile violence, he claimed a proportionable relief from the equity of the laws: five years were the customary term, and no solid or costly improvements could be expected from a farmer, who, at each moment might be ejected by the sale of the estate. 162 Usury, 163 the inveterate grievance of the city, had been discouraged by the Twelve Tables, 164 and abolished by the clamors of the people. It was revived by their wants and idleness, tolerated by the discretion of the praetors, and finally determined by the Code of Justinian. Persons of illustrious rank were confined to the moderate profit of four per cent.; six was pronounced to be the ordinary and legal standard of interest; eight was allowed for the convenience of manufactures and merchants; twelve was granted to nautical insurance, which the wiser ancients had not attempted to define; but, except in this perilous adventure, the practice of exorbitant usury was severely restrained. 165 The most simple interest was condemned by the clergy of the East and West; 166 but the sense of mutual benefit, which had triumphed over the law of the republic, has resisted with equal firmness the decrees of the church, and even the prejudices of mankind. 167
161 The nice and various subject of contracts by consent is spread over four books (xvii. — xx.) of the Pandects, and is one of the parts best deserving of the attention of an English student.
Note: This is erroneously called “benefits.” Gibbon enumerates various kinds of contracts, of which some alone are properly called benefits. — W.]
162 The covenants of rent are defined in the Pandects (l. xix.) and the Code, (l. iv. tit. lxv.) The quinquennium, or term of five years, appears to have been a custom rather than a law; but in France all leases of land were determined in nine years. This limitation was removed only in the year 1775, (Encyclopedie Methodique, tom. i. de la Jurisprudence, p. 668, 669;) and I am sorry to observe that it yet prevails in the beauteous and happy country where I am permitted to reside.]
163 I might implicitly acquiesce in the sense and learning of the three books of G. Noodt, de foenore et usuris. (Opp. tom. i. p. 175 — 268.) The interpretation of the asses or centesimoe usuroe at twelve, the unciarioe at one per cent., is maintained by the best critics and civilians: Noodt, (l. ii. c. 2, p. 207,) Gravina, (Opp. p. 205, &c., 210,) Heineccius, (Antiquitat. ad Institut. l. iii. tit. xv.,) Montesquieu, (Esprit des Loix, l. xxii. c. 22, tom. ii. p. 36. Defense de l’Esprit des Loix, tom. iii. p. 478, &c.,) and above all, John Frederic Gronovius (de Pecunia Veteri, l. iii. c. 13, p. 213 — 227, and his three Antexegeses, p. 455 — 655, the founder, or at least the champion, of this probable opinion; which is, however, perplexed with some difficulties.]
164 Primo xii. Tabulis sancitum est ne quis unciario foenore amplius exerceret, (Tacit. Annal. vi. 16.) Pour peu (says Montesquieu, Esprit des Loix, l. xxii. 22) qu’on soit verse dans l’histoire de Rome, on verra qu’une pareille loi ne devoit pas etre l’ouvrage des decemvirs. Was Tacitus ignorant — or stupid? But the wiser and more virtuous patricians might sacrifice their avarice to their ambition, and might attempt to check the odious practice by such interest as no lender would accept, and such penalties as no debtor would incur.
Note: The real nature of the foenus unciarium has been proved; it amounted in a year of twelve months to ten per cent. See, in the Magazine for Civil Law, by M. Hugo, vol. v. p. 180, 184, an article of M. Schrader, following up the conjectures of Niebuhr, Hist. Rom. tom. ii. p. 431. — W.
Compare a very clear account of this question in the appendix to Mr. Travers Twiss’s Epitome of Niebuhr, vol. ii. p. 257. — M.]
165 Justinian has not condescended to give usury a place in his Institutes; but the necessary rules and restrictions are inserted in the Pandects (l. xxii. tit. i. ii.) and the Code, (l. iv. tit. xxxii. xxxiii.)]
166 The Fathers are unanimous, (Barbeyrac, Morale des Peres, p. 144. &c.:) Cyprian, Lactantius, Basil, Chrysostom, (see his frivolous arguments in Noodt, l. i. c. 7, p. 188,) Gregory of Nyssa, Ambrose, Jerom, Augustin, and a host of councils and casuists.]
167 Cato, Seneca, Plutarch, have loudly condemned the practice or abuse of usury. According to the etymology of foenus, the principal is supposed to generate the interest: a breed of barren metal, exclaims Shakespeare — and the stage is the echo of the public voice.]
3. Nature and society impose the strict obligation of repairing an injury; and the sufferer by private injustice acquires a personal right and a legitimate action. If the property of another be intrusted to our care, the requisite degree of care may rise and fall according to the benefit which we derive from such temporary possession; we are seldom made responsible for inevitable accident, but the consequences of a voluntary fault must always be imputed to the author. 168 A Roman pursued and recovered his stolen goods by a civil action of theft; they might pass through a succession of pure and innocent hands, but nothing less than a prescription of thirty years could extinguish his original claim. They were restored by the sentence of the praetor, and the injury was compensated by double, or threefold, or even quadruple damages, as the deed had been perpetrated by secret fraud or open rapine, as the robber had been surprised in the fact, or detected by a subsequent research. The Aquilian law 169 defended the living property of a citizen, his slaves and cattle, from the stroke of malice or negligence: the highest price was allowed that could be ascribed to the domestic animal at any moment of the year preceding his death; a similar latitude of thirty days was granted on the destruction of any other valuable effects. A personal injury is blunted or sharpened by the manners of the times and the sensibility of the individual: the pain or the disgrace of a word or blow cannot easily be appreciated by a pecuniary equivalent. The rude jurisprudence of the decemvirs had confounded all hasty insults, which did not amount to the fracture of a limb, by condemning the aggressor to the common penalty of twenty-five asses. But the same denomination of money was reduced, in three centuries, from a pound to the weight of half an ounce: and the insolence of a wealthy Roman indulged himself in the cheap amusement of breaking and satisfying the law of the twelve tables. Veratius ran through the streets striking on the face the inoffensive passengers, and his attendant purse-bearer immediately silenced their clamors by the legal tender of twenty-five pieces of copper, about the value of one shilling. 170 The equity of the praetors examined and estimated the distinct merits of each particular complaint. In the adjudication of civil damages, the magistrate assumed a right to consider the various circumstances of time and place, of age and dignity, which may aggravate the shame and sufferings of the injured person; but if he admitted the idea of a fine, a punishment, an example, he invaded the province, though, perhaps, he supplied the defects, of the criminal law.
168 Sir William Jones has given an ingenious and rational Essay on the law of Bailment, (London, 1781, p. 127, in 8vo.) He is perhaps the only lawyer equally conversant with the year-books of Westminster, the Commentaries of Ulpian, the Attic pleadings of Isaeus, and the sentences of Arabian and Persian cadhis.]
169 Noodt (Opp. tom. i. p. 137 — 172) has composed a separate treatise, ad Legem Aquilian, (Pandect. l. ix. tit. ii.)]
170 Aulus Gellius (Noct. Attic. xx. i.) borrowed this story from the Commentaries of Q. Labeo on the xii. tables.]
The execution of the Alban dictator, who was dismembered by eight horses, is represented by Livy as the first and the fast instance of Roman cruelty in the punishment of the most atrocious crimes. 171 But this act of justice, or revenge, was inflicted on a foreign enemy in the heat of victory, and at the command of a single man. The twelve tables afford a more decisive proof of the national spirit, since they were framed by the wisest of the senate, and accepted by the free voices of the people; yet these laws, like the statutes of Draco, 172 are written in characters of blood. 173 They approve the inhuman and unequal principle of retaliation; and the forfeit of an eye for an eye, a tooth for a tooth, a limb for a limb, is rigorously exacted, unless the offender can redeem his pardon by a fine of three hundred pounds of copper. The decemvirs distributed with much liberality the slighter chastisements of flagellation and servitude; and nine crimes of a very different complexion are adjudged worthy of death.
1. Any act of treason against the state, or of correspondence with the public enemy. The mode of execution was painful and ignominious: the head of the degenerate Roman was shrouded in a veil, his hands were tied behind his back, and after he had been scourged by the lictor, he was suspended in the midst of the forum on a cross, or inauspicious tree.
2. Nocturnal meetings in the city; whatever might be the pretence, of pleasure, or religion, or the public good.
3. The murder of a citizen; for which the common feelings of mankind demand the blood of the murderer. Poison is still more odious than the sword or dagger; and we are surprised to discover, in two flagitious events, how early such subtle wickedness had infected the simplicity of the republic, and the chaste virtues of the Roman matrons. 174 The parricide, who violated the duties of nature and gratitude, was cast into the river or the sea, enclosed in a sack; and a cock, a viper, a dog, and a monkey, were successively added, as the most suitable companions. 175 Italy produces no monkeys; but the want could never be felt, till the middle of the sixth century first revealed the guilt of a parricide. 176
4. The malice of an incendiary. After the previous ceremony of whipping, he himself was delivered to the flames; and in this example alone our reason is tempted to applaud the justice of retaliation.
5. Judicial perjury. The corrupt or malicious witness was thrown headlong from the Tarpeian rock, to expiate his falsehood, which was rendered still more fatal by the severity of the penal laws, and the deficiency of written evidence.
6. The corruption of a judge, who accepted bribes to pronounce an iniquitous sentence.
7. Libels and satires, whose rude strains sometimes disturbed the peace of an illiterate city. The author was beaten with clubs, a worthy chastisement, but it is not certain that he was left to expire under the blows of the executioner. 177
8. The nocturnal mischief of damaging or destroying a neighbor’s corn. The criminal was suspended as a grateful victim to Ceres. But the sylvan deities were less implacable, and the extirpation of a more valuable tree was compensated by the moderate fine of twenty-five pounds of copper.
9. Magical incantations; which had power, in the opinion of the Latin shepherds, to exhaust the strength of an enemy, to extinguish his life, and to remove from their seats his deep-rooted plantations.
The cruelty of the twelve tables against insolvent debtors still remains to be told; and I shall dare to prefer the literal sense of antiquity to the specious refinements of modern criticism. 178 * After the judicial proof or confession of the debt, thirty days of grace were allowed before a Roman was delivered into the power of his fellow — citizen. In this private prison, twelve ounces of rice were his daily food; he might be bound with a chain of fifteen pounds weight; and his misery was thrice exposed in the market place, to solicit the compassion of his friends and countrymen. At the expiration of sixty days, the debt was discharged by the loss of liberty or life; the insolvent debtor was either put to death, or sold in foreign slavery beyond the Tyber: but, if several creditors were alike obstinate and unrelenting, they might legally dismember his body, and satiate their revenge by this horrid partition. The advocates for this savage law have insisted, that it must strongly operate in deterring idleness and fraud from contracting debts which they were unable to discharge; but experience would dissipate this salutary terror, by proving that no creditor could be found to exact this unprofitable penalty of life or limb. As the manners of Rome were insensibly polished, the criminal code of the decemvirs was abolished by the humanity of accusers, witnesses, and judges; and impunity became the consequence of immoderate rigor. The Porcian and Valerian laws prohibited the magistrates from inflicting on a free citizen any capital, or even corporal, punishment; and the obsolete statutes of blood were artfully, and perhaps truly, ascribed to the spirit, not of patrician, but of regal, tyranny.
171 The narrative of Livy (i. 28) is weighty and solemn. At tu, Albane, maneres, is a harsh reflection, unworthy of Virgil’s humanity, (Aeneid, viii. 643.) Heyne, with his usual good taste, observes that the subject was too horrid for the shield of Aencas, (tom. iii. p. 229.)]
172 The age of Draco (Olympiad xxxix. l) is fixed by Sir John Marsham (Canon Chronicus, p. 593 — 596) and Corsini, (Fasti Attici, tom. iii. p. 62.) For his laws, see the writers on the government of Athens, Sigonius, Meursius, Potter, &c.]
173 The viith, de delictis, of the xii. tables is delineated by Gravina, (Opp. p. 292, 293, with a commentary, p. 214 — 230.) Aulus Gellius (xx. 1) and the Collatio Legum Mosaicarum et Romanarum afford much original information.]
174 Livy mentions two remarkable and flagitious aeras, of 3000 persons accused, and of 190 noble matrons convicted, of the crime of poisoning, (xl. 43, viii. 18.) Mr. Hume discriminates the ages of private and public virtue, (Essays, vol. i. p. 22, 23.) I would rather say that such ebullitions of mischief (as in France in the year 1680) are accidents and prodigies which leave no marks on the manners of a nation.]
175 The xii. tables and Cicero (pro Roscio Amerino, c. 25, 26) are content with the sack; Seneca (Excerpt. Controvers. v 4) adorns it with serpents; Juvenal pities the guiltless monkey (innoxia simia — 156.) Adrian (apud Dositheum Magistrum, l. iii. c. p. 874 — 876, with Schulting’s Note,) Modestinus, (Pandect. xlviii. tit. ix. leg. 9,) Constantine, (Cod. l. ix. tit. xvii.,) and Justinian, (Institut. l. iv. tit. xviii.,) enumerate all the companions of the parricide. But this fanciful execution was simplified in practice. Hodie tamen viv exuruntur vel ad bestias dantur, (Paul. Sentent. Recept. l. v. tit. xxiv p. 512, edit. Schulting.)]
176 The first parricide at Rome was L. Ostius, after the second Punic war, (Plutarch, in Romulo, tom. i. p. 54.) During the Cimbric, P. Malleolus was guilty of the first matricide, (Liv. Epitom. l. lxviii.)]
177 Horace talks of the formidine fustis, (l. ii. epist. ii. 154,) but Cicero (de Republica, l. iv. apud Augustin. de Civitat. Dei, ix. 6, in Fragment. Philosoph. tom. iii. p. 393, edit. Olivet) affirms that the decemvirs made libels a capital offence: cum perpaucas res capite sanxisent — perpaucus!]
178 Bynkershoek (Observat. Juris Rom. l. i. c. 1, in Opp. tom. i. p. 9, 10, 11) labors to prove that the creditors divided not the body, but the price, of the insolvent debtor. Yet his interpretation is one perpetual harsh metaphor; nor can he surmount the Roman authorities of Quintilian, Caecilius, Favonius, and Tertullian. See Aulus Gellius, Noct. Attic. xxi.]
* Hugo (Histoire du Droit Romain, tom. i. p. 234) concurs with Gibbon See Niebuhr, vol. ii. p. 313. — M.]
In the absence of penal laws, and the insufficiency of civil actions, the peace and justice of the city were imperfectly maintained by the private jurisdiction of the citizens. The malefactors who replenish our jails are the outcasts of society, and the crimes for which they suffer may be commonly ascribed to ignorance, poverty, and brutal appetite. For the perpetration of similar enormities, a vile plebeian might claim and abuse the sacred character of a member of the republic: but, on the proof or suspicion of guilt, the slave, or the stranger, was nailed to a cross; and this strict and summary justice might be exercised without restraint over the greatest part of the populace of Rome.
Each family contained a domestic tribunal, which was not confined, like that of the praetor, to the cognizance of external actions: virtuous principles and habits were inculcated by the discipline of education; and the Roman father was accountable to the state for the manners of his children, since he disposed, without appeal, of their life, their liberty, and their inheritance. In some pressing emergencies, the citizen was authorized to avenge his private or public wrongs. The consent of the Jewish, the Athenian, and the Roman laws approved the slaughter of the nocturnal thief; though in open daylight a robber could not be slain without some previous evidence of danger and complaint. Whoever surprised an adulterer in his nuptial bed might freely exercise his revenge; 179 the most bloody and wanton outrage was excused by the provocation; 180 nor was it before the reign of Augustus that the husband was reduced to weigh the rank of the offender, or that the parent was condemned to sacrifice his daughter with her guilty seducer. After the expulsion of the kings, the ambitious Roman, who should dare to assume their title or imitate their tyranny, was devoted to the infernal gods: each of his fellow-citizens was armed with the sword of justice; and the act of Brutus, however repugnant to gratitude or prudence, had been already sanctified by the judgment of his country. 181 The barbarous practice of wearing arms in the midst of peace, 182 and the bloody maxims of honor, were unknown to the Romans; and, during the two purest ages, from the establishment of equal freedom to the end of the Punic wars, the city was never disturbed by sedition, and rarely polluted with atrocious crimes. The failure of penal laws was more sensibly felt, when every vice was inflamed by faction at home and dominion abroad. In the time of Cicero, each private citizen enjoyed the privilege of anarchy; each minister of the republic was exalted to the temptations of regal power, and their virtues are entitled to the warmest praise, as the spontaneous fruits of nature or philosophy. After a triennial indulgence of lust, rapine, and cruelty, Verres, the tyrant of Sicily, could only be sued for the pecuniary restitution of three hundred thousand pounds sterling; and such was the temper of the laws, the judges, and perhaps the accuser himself, 183 that, on refunding a thirteenth part of his plunder, Verres could retire to an easy and luxurious exile. 184
179 The first speech of Lysias (Reiske, Orator. Graec. tom. v. p. 2 — 48) is in defence of a husband who had killed the adulterer. The rights of husbands and fathers at Rome and Athens are discussed with much learning by Dr. Taylor, (Lectiones Lysiacae, c. xi. in Reiske, tom. vi. p. 301 — 308.)]
180 See Casaubon ad Athenaeum, l. i. c. 5, p. 19. Percurrent raphanique mugilesque, (Catull. p. 41, 42, edit. Vossian.) Hunc mugilis intrat, (Juvenal. Satir. x. 317.) Hunc perminxere calones, (Horat l. i. Satir. ii. 44.) Familiae stuprandum dedit.. fraudi non fuit, (Val. Maxim. l. vi. c. l, No. 13.)]
181 This law is noticed by Livy (ii. 8) and Plutarch, (in Publiccla, tom. i. p. 187,) and it fully justifies the public opinion on the death of Caesar which Suetonius could publish under the Imperial government. Jure caesus existimatur, (in Julio, c. 76.) Read the letters that passed between Cicero and Matius a few months after the ides of March (ad Fam. xi. 27, 28.)]
182 Thucydid. l. i. c. 6 The historian who considers this circumstance as the test of civilization, would disdain the barbarism of a European court]
183 He first rated at millies (800,000l.) the damages of Sicily, (Divinatio in Caecilium, c. 5,) which he afterwards reduced to quadringenties, (320,000l. — 1 Actio in Verrem, c. 18,) and was finally content with tricies, (24,000l.) Plutarch (in Ciceron. tom. iii. p. 1584) has not dissembled the popular suspicion and report.]
184 Verres lived near thirty years after his trial, till the second triumvirate, when he was proscribed by the taste of Mark Antony for the sake of his Corinthian plate, (Plin. Hist. Natur. xxxiv. 3.)]
The first imperfect attempt to restore the proportion of crimes and punishments was made by the dictator Sylla, who, in the midst of his sanguinary triumph, aspired to restrain the license, rather than to oppress the liberty, of the Romans. He gloried in the arbitrary proscription of four thousand seven hundred citizens. 185 But, in the character of a legislator, he respected the prejudices of the times; and, instead of pronouncing a sentence of death against the robber or assassin, the general who betrayed an army, or the magistrate who ruined a province, Sylla was content to aggravate the pecuniary damages by the penalty of exile, or, in more constitutional language, by the interdiction of fire and water. The Cornelian, and afterwards the Pompeian and Julian, laws introduced a new system of criminal jurisprudence; 186 and the emperors, from Augustus to Justinian, disguised their increasing rigor under the names of the original authors. But the invention and frequent use of extraordinary pains proceeded from the desire to extend and conceal the progress of despotism. In the condemnation of illustrious Romans, the senate was always prepared to confound, at the will of their masters, the judicial and legislative powers. It was the duty of the governors to maintain the peace of their province, by the arbitrary and rigid administration of justice; the freedom of the city evaporated in the extent of empire, and the Spanish malefactor, who claimed the privilege of a Roman, was elevated by the command of Galba on a fairer and more lofty cross. 187 Occasional rescripts issued from the throne to decide the questions which, by their novelty or importance, appeared to surpass the authority and discernment of a proconsul. Transportation and beheading were reserved for honorable persons; meaner criminals were either hanged, or burnt, or buried in the mines, or exposed to the wild beasts of the amphitheatre. Armed robbers were pursued and extirpated as the enemies of society; the driving away horses or cattle was made a capital offence; 188 but simple theft was uniformly considered as a mere civil and private injury. The degrees of guilt, and the modes of punishment, were too often determined by the discretion of the rulers, and the subject was left in ignorance of the legal danger which he might incur by every action of his life.
185 Such is the number assigned by Valer’us Maximus, (l. ix. c. 2, No. 1,) Florus (iv. 21) distinguishes 2000 senators and knights. Appian (de Bell. Civil. l. i. c. 95, tom. ii. p. 133, edit. Schweighauser) more accurately computes forty victims of the senatorian rank, and 1600 of the equestrian census or order.]
186 For the penal laws (Leges Corneliae, Pompeiae, Julae, of Sylla, Pompey, and the Caesars) see the sentences of Paulus, (l. iv. tit. xviii. — xxx. p. 497 — 528, edit. Schulting,) the Gregorian Code, (Fragment. l. xix. p. 705, 706, in Schulting,) the Collatio Legum Mosaicarum et Romanarum, (tit. i. — xv.,) the Theodosian Code, (l. ix.,) the Code of Justinian, (l. ix.,) the Pandects, (xlviii.,) the Institutes, (l. iv. tit. xviii.,) and the Greek version of Theophilus, (p. 917 — 926.)]
187 It was a guardian who had poisoned his ward. The crime was atrocious: yet the punishment is reckoned by Suetonius (c. 9) among the acts in which Galba showed himself acer, vehemens, et in delictis coercendis immodicus.]
188 The abactores or abigeatores, who drove one horse, or two mares or oxen, or five hogs, or ten goats, were subject to capital punishment, (Paul, Sentent. Recept. l. iv. tit. xviii. p. 497, 498.) Hadrian, (ad Concil. Baeticae,) most severe where the offence was most frequent, condemns the criminals, ad gladium, ludi damnationem, (Ulpian, de Officio Proconsulis, l. viii. in Collatione Legum Mosaic. et Rom. tit. xi p. 235.)]
A sin, a vice, a crime, are the objects of theology, ethics, and jurisprudence. Whenever their judgments agree, they corroborate each other; but, as often as they differ, a prudent legislator appreciates the guilt and punishment according to the measure of social injury. On this principle, the most daring attack on the life and property of a private citizen is judged less atrocious than the crime of treason or rebellion, which invades the majesty of the republic: the obsequious civilians unanimously pronounced, that the republic is contained in the person of its chief; and the edge of the Julian law was sharpened by the incessant diligence of the emperors. The licentious commerce of the sexes may be tolerated as an impulse of nature, or forbidden as a source of disorder and corruption; but the fame, the fortunes, the family of the husband, are seriously injured by the adultery of the wife. The wisdom of Augustus, after curbing the freedom of revenge, applied to this domestic offence the animadversion of the laws: and the guilty parties, after the payment of heavy forfeitures and fines, were condemned to long or perpetual exile in two separate islands. 189 Religion pronounces an equal censure against the infidelity of the husband; but, as it is not accompanied by the same civil effects, the wife was never permitted to vindicate her wrongs; 190 and the distinction of simple or double adultery, so familiar and so important in the canon law, is unknown to the jurisprudence of the Code and the Pandects. I touch with reluctance, and despatch with impatience, a more odious vice, of which modesty rejects the name, and nature abominates the idea. The primitive Romans were infected by the example of the Etruscans 191 and Greeks: 192 and in the mad abuse of prosperity and power, every pleasure that is innocent was deemed insipid; and the Scatinian law, 193 which had been extorted by an act of violence, was insensibly abolished by the lapse of time and the multitude of criminals. By this law, the rape, perhaps the seduction, of an ingenuous youth, was compensated, as a personal injury, by the poor damages of ten thousand sesterces, or fourscore pounds; the ravisher might be slain by the resistance or revenge of chastity; and I wish to believe, that at Rome, as in Athens, the voluntary and effeminate deserter of his sex was degraded from the honors and the rights of a citizen. 194 But the practice of vice was not discouraged by the severity of opinion: the indelible stain of manhood was confounded with the more venial transgressions of fornication and adultery, nor was the licentious lover exposed to the same dishonor which he impressed on the male or female partner of his guilt. From Catullus to Juvenal, 195 the poets accuse and celebrate the degeneracy of the times; and the reformation of manners was feebly attempted by the reason and authority of the civilians till the most virtuous of the Caesars proscribed the sin against nature as a crime against society. 196
189 Till the publication of the Julius Paulus of Schulting, (l. ii. tit. xxvi. p. 317 — 323,) it was affirmed and believed that the Julian laws punished adultery with death; and the mistake arose from the fraud or error of Tribonian. Yet Lipsius had suspected the truth from the narratives of Tacitus, (Annal. ii. 50, iii. 24, iv. 42,) and even from the practice of Augustus, who distinguished the treasonable frailties of his female kindred.]
190 In cases of adultery, Severus confined to the husband the right of public accusation, (Cod. Justinian, l. ix. tit. ix. leg. 1.) Nor is this privilege unjust — so different are the effects of male or female infidelity.]
191 Timon (l. i.) and Theopompus (l. xliii. apud Athenaeum, l. xii. p. 517) describe the luxury and lust of the Etruscans. About the same period (A. U. C. 445) the Roman youth studied in Etruria, (liv. ix. 36.)]
192 The Persians had been corrupted in the same school, (Herodot. l. i. c. 135.) A curious dissertation might be formed on the introduction of paederasty after the time of Homer, its progress among the Greeks of Asia and Europe, the vehemence of their passions, and the thin device of virtue and friendship which amused the philosophers of Athens. But scelera ostendi oportet dum puniuntur, abscondi flagitia.]
193 The name, the date, and the provisions of this law are equally doubtful, (Gravina, Opp. p. 432, 433. Heineccius, Hist. Jur. Rom. No. 108. Ernesti, Clav. Ciceron. in Indice Legum.) But I will observe that the nefanda Venus of the honest German is styled aversa by the more polite Italian.]
194 See the oration of Aeschines against the catamite Timarchus, (in Reiske, Orator. Graec. tom. iii. p. 21 — 184.)]
195 A crowd of disgraceful passages will force themselves on the memory of the classic reader: I will only remind him of the cool declaration of Ovid:—
Odi concubitus qui non utrumque resolvant. Hoc est quod puerum tangar amore minus.]
196 Aelius Lampridius, in Vit. Heliogabal. in Hist. August p. 112 Aurelius Victor, in Philippo, Codex Theodos. l. ix. tit. vii. leg. 7, and Godefroy’s Commentary, tom. iii. p. 63. Theodosius abolished the subterraneous brothels of Rome, in which the prostitution of both sexes was acted with impunity.]
A new spirit of legislation, respectable even in its error, arose in the empire with the religion of Constantine. 197 The laws of Moses were received as the divine original of justice, and the Christian princes adapted their penal statutes to the degrees of moral and religious turpitude. Adultery was first declared to be a capital offence: the frailty of the sexes was assimilated to poison or assassination, to sorcery or parricide; the same penalties were inflicted on the passive and active guilt of paederasty; and all criminals of free or servile condition were either drowned or beheaded, or cast alive into the avenging flames. The adulterers were spared by the common sympathy of mankind; but the lovers of their own sex were pursued by general and pious indignation: the impure manners of Greece still prevailed in the cities of Asia, and every vice was fomented by the celibacy of the monks and clergy. Justinian relaxed the punishment at least of female infidelity: the guilty spouse was only condemned to solitude and penance, and at the end of two years she might be recalled to the arms of a forgiving husband. But the same emperor declared himself the implacable enemy of unmanly lust, and the cruelty of his persecution can scarcely be excused by the purity of his motives. 198 In defiance of every principle of justice, he stretched to past as well as future offences the operations of his edicts, with the previous allowance of a short respite for confession and pardon. A painful death was inflicted by the amputation of the sinful instrument, or the insertion of sharp reeds into the pores and tubes of most exquisite sensibility; and Justinian defended the propriety of the execution, since the criminals would have lost their hands, had they been convicted of sacrilege. In this state of disgrace and agony, two bishops, Isaiah of Rhodes and Alexander of Diospolis, were dragged through the streets of Constantinople, while their brethren were admonished, by the voice of a crier, to observe this awful lesson, and not to pollute the sanctity of their character. Perhaps these prelates were innocent. A sentence of death and infamy was often founded on the slight and suspicious evidence of a child or a servant: the guilt of the green faction, of the rich, and of the enemies of Theodora, was presumed by the judges, and paederasty became the crime of those to whom no crime could be imputed. A French philosopher 199 has dared to remark that whatever is secret must be doubtful, and that our natural horror of vice may be abused as an engine of tyranny. But the favorable persuasion of the same writer, that a legislator may confide in the taste and reason of mankind, is impeached by the unwelcome discovery of the antiquity and extent of the disease. 200
197 See the laws of Constantine and his successors against adultery, sodomy &c., in the Theodosian, (l. ix. tit. vii. leg. 7, l. xi. tit. xxxvi leg. 1, 4) and Justinian Codes, (l. ix. tit. ix. leg. 30, 31.) These princes speak the language of passion as well as of justice, and fraudulently ascribe their own severity to the first Caesars.]
198 Justinian, Novel. lxxvii. cxxxiv. cxli. Procopius in Anecdot. c. 11, 16, with the notes of Alemannus. Theophanes, p. 151. Cedrenus. p. 688. Zonaras, l. xiv. p. 64.]
199 Montesquieu, Esprit des Loix, l. xii. c. 6. That eloquent philosopher conciliates the rights of liberty and of nature, which should never be placed in opposition to each other.]
200 For the corruption of Palestine, 2000 years before the Christian aera, see the history and laws of Moses. Ancient Gaul is stigmatized by Diodorus Siculus, (tom. i. l. v. p. 356,) China by the Mahometar and Christian travellers, (Ancient Relations of India and China, p. 34 translated by Renaudot, and his bitter critic the Pere Premare, Lettres Edifiantes, tom. xix. p. 435,) and native America by the Spanish historians, (Garcilasso de la Vega, l. iii. c. 13, Rycaut’s translation; and Dictionnaire de Bayle, tom. iii. p. 88.) I believe, and hope, that the negroes, in their own country, were exempt from this moral pestilence.]
The free citizens of Athens and Rome enjoyed, in all criminal cases, the invaluable privilege of being tried by their country. 201 1. The administration of justice is the most ancient office of a prince: it was exercised by the Roman kings, and abused by Tarquin; who alone, without law or council, pronounced his arbitrary judgments. The first consuls succeeded to this regal prerogative; but the sacred right of appeal soon abolished the jurisdiction of the magistrates, and all public causes were decided by the supreme tribunal of the people. But a wild democracy, superior to the forms, too often disdains the essential principles, of justice: the pride of despotism was envenomed by plebeian envy, and the heroes of Athens might sometimes applaud the happiness of the Persian, whose fate depended on the caprice of a single tyrant. Some salutary restraints, imposed by the people or their own passions, were at once the cause and effect of the gravity and temperance of the Romans. The right of accusation was confined to the magistrates.
A vote of the thirty five tribes could inflict a fine; but the cognizance of all capital crimes was reserved by a fundamental law to the assembly of the centuries, in which the weight of influence and property was sure to preponderate. Repeated proclamations and adjournments were interposed, to allow time for prejudice and resentment to subside: the whole proceeding might be annulled by a seasonable omen, or the opposition of a tribune; and such popular trials were commonly less formidable to innocence than they were favorable to guilt. But this union of the judicial and legislative powers left it doubtful whether the accused party was pardoned or acquitted; and, in the defence of an illustrious client, the orators of Rome and Athens address their arguments to the policy and benevolence, as well as to the justice, of their sovereign. 2. The task of convening the citizens for the trial of each offender became more difficult, as the citizens and the offenders continually multiplied; and the ready expedient was adopted of delegating the jurisdiction of the people to the ordinary magistrates, or to extraordinary inquisitors. In the first ages these questions were rare and occasional. In the beginning of the seventh century of Rome they were made perpetual: four praetors were annually empowered to sit in judgment on the state offences of treason, extortion, peculation, and bribery; and Sylla added new praetors and new questions for those crimes which more directly injure the safety of individuals. By these inquisitors the trial was prepared and directed; but they could only pronounce the sentence of the majority of judges, who with some truth, and more prejudice, have been compared to the English juries. 202 To discharge this important, though burdensome office, an annual list of ancient and respectable citizens was formed by the praetor. After many constitutional struggles, they were chosen in equal numbers from the senate, the equestrian order, and the people; four hundred and fifty were appointed for single questions; and the various rolls or decuries of judges must have contained the names of some thousand Romans, who represented the judicial authority of the state. In each particular cause, a sufficient number was drawn from the urn; their integrity was guarded by an oath; the mode of ballot secured their independence; the suspicion of partiality was removed by the mutual challenges of the accuser and defendant; and the judges of Milo, by the retrenchment of fifteen on each side, were reduced to fifty-one voices or tablets, of acquittal, of condemnation, or of favorable doubt. 203 3. In his civil jurisdiction, the praetor of the city was truly a judge, and almost a legislator; but, as soon as he had prescribed the action of law, he often referred to a delegate the determination of the fact. With the increase of legal proceedings, the tribunal of the centumvirs, in which he presided, acquired more weight and reputation. But whether he acted alone, or with the advice of his council, the most absolute powers might be trusted to a magistrate who was annually chosen by the votes of the people. The rules and precautions of freedom have required some explanation; the order of despotism is simple and inanimate. Before the age of Justinian, or perhaps of Diocletian, the decuries of Roman judges had sunk to an empty title: the humble advice of the assessors might be accepted or despised; and in each tribunal the civil and criminal jurisdiction was administered by a single magistrate, who was raised and disgraced by the will of the emperor.
201 The important subject of the public questions and judgments at Rome, is explained with much learning, and in a classic style, by Charles Sigonius, (l. iii. de Judiciis, in Opp. tom. iii. p. 679 — 864;) and a good abridgment may be found in the Republique Romaine of Beaufort, (tom. ii. l. v. p. 1 — 121.) Those who wish for more abstruse law may study Noodt, (de Jurisdictione et Imperio Libri duo, tom. i. p. 93 — 134,) Heineccius, (ad Pandect. l. i. et ii. ad Institut. l. iv. tit. xvii Element. ad Antiquitat.) and Gravina (Opp. 230 — 251.)]
202 The office, both at Rome and in England, must be considered as an occasional duty, and not a magistracy, or profession. But the obligation of a unanimous verdict is peculiar to our laws, which condemn the jurymen to undergo the torture from whence they have exempted the criminal.]
203 We are indebted for this interesting fact to a fragment of Asconius Pedianus, who flourished under the reign of Tiberius. The loss of his Commentaries on the Orations of Cicero has deprived us of a valuable fund of historical and legal knowledge.]
A Roman accused of any capital crime might prevent the sentence of the law by voluntary exile, or death. Till his guilt had been legally proved, his innocence was presumed, and his person was free: till the votes of the last century had been counted and declared, he might peaceably secede to any of the allied cities of Italy, or Greece, or Asia. 204 His fame and fortunes were preserved, at least to his children, by this civil death; and he might still be happy in every rational and sensual enjoyment, if a mind accustomed to the ambitious tumult of Rome could support the uniformity and silence of Rhodes or Athens. A bolder effort was required to escape from the tyranny of the Caesars; but this effort was rendered familiar by the maxims of the stoics, the example of the bravest Romans, and the legal encouragements of suicide. The bodies of condemned criminals were exposed to public ignominy, and their children, a more serious evil, were reduced to poverty by the confiscation of their fortunes. But, if the victims of Tiberius and Nero anticipated the decree of the prince or senate, their courage and despatch were recompensed by the applause of the public, the decent honors of burial, and the validity of their testaments. 205 The exquisite avarice and cruelty of Domitian appear to have deprived the unfortunate of this last consolation, and it was still denied even by the clemency of the Antonines. A voluntary death, which, in the case of a capital offence, intervened between the accusation and the sentence, was admitted as a confession of guilt, and the spoils of the deceased were seized by the inhuman claims of the treasury. 206 Yet the civilians have always respected the natural right of a citizen to dispose of his life; and the posthumous disgrace invented by Tarquin, 207 to check the despair of his subjects, was never revived or imitated by succeeding tyrants. The powers of this world have indeed lost their dominion over him who is resolved on death; and his arm can only be restrained by the religious apprehension of a future state. Suicides are enumerated by Virgil among the unfortunate, rather than the guilty; 208 and the poetical fables of the infernal shades could not seriously influence the faith or practice of mankind. But the precepts of the gospel, or the church, have at length imposed a pious servitude on the minds of Christians, and condemn them to expect, without a murmur, the last stroke of disease or the executioner.
204 Polyb. l. vi. p. 643. The extension of the empire and city of Rome obliged the exile to seek a more distant place of retirement.]
205 Qui de se statuebant, humabanta corpora, manebant testamenta; pretium festinandi. Tacit. Annal. vi. 25, with the Notes of Lipsius.]
206 Julius Paulus, (Sentent. Recept. l. v. tit. xii. p. 476,) the Pandects, (xlviii. tit. xxi.,) the Code, (l. ix. tit. l.,) Bynkershoek, (tom. i. p. 59, Observat. J. C. R. iv. 4,) and Montesquieu, (Esprit des Loix, l. xxix. c. ix.,) define the civil limitations of the liberty and privileges of suicide. The criminal penalties are the production of a later and darker age.]
207 Plin. Hist. Natur. xxxvi. 24. When he fatigued his subjects in building the Capitol, many of the laborers were provoked to despatch themselves: he nailed their dead bodies to crosses.]
208 The sole resemblance of a violent and premature death has engaged Virgil (Aeneid, vi. 434 — 439) to confound suicides with infants, lovers, and persons unjustly condemned. Heyne, the best of his editors, is at a loss to deduce the idea, or ascertain the jurisprudence, of the Roman poet.]
The penal statutes form a very small proportion of the sixty-two books of the Code and Pandects; and in all judicial proceedings, the life or death of a citizen is determined with less caution or delay than the most ordinary question of covenant or inheritance. This singular distinction, though something may be allowed for the urgent necessity of defending the peace of society, is derived from the nature of criminal and civil jurisprudence. Our duties to the state are simple and uniform: the law by which he is condemned is inscribed not only on brass or marble, but on the conscience of the offender, and his guilt is commonly proved by the testimony of a single fact. But our relations to each other are various and infinite; our obligations are created, annulled, and modified, by injuries, benefits, and promises; and the interpretation of voluntary contracts and testaments, which are often dictated by fraud or ignorance, affords a long and laborious exercise to the sagacity of the judge. The business of life is multiplied by the extent of commerce and dominion, and the residence of the parties in the distant provinces of an empire is productive of doubt, delay, and inevitable appeals from the local to the supreme magistrate. Justinian, the Greek emperor of Constantinople and the East, was the legal successor of the Latin shepherd who had planted a colony on the banks of the Tyber. In a period of thirteen hundred years, the laws had reluctantly followed the changes of government and manners; and the laudable desire of conciliating ancient names with recent institutions destroyed the harmony, and swelled the magnitude, of the obscure and irregular system. The laws which excuse, on any occasions, the ignorance of their subjects, confess their own imperfections: the civil jurisprudence, as it was abridged by Justinian, still continued a mysterious science, and a profitable trade, and the innate perplexity of the study was involved in tenfold darkness by the private industry of the practitioners. The expense of the pursuit sometimes exceeded the value of the prize, and the fairest rights were abandoned by the poverty or prudence of the claimants. Such costly justice might tend to abate the spirit of litigation, but the unequal pressure serves only to increase the influence of the rich, and to aggravate the misery of the poor. By these dilatory and expensive proceedings, the wealthy pleader obtains a more certain advantage than he could hope from the accidental corruption of his judge. The experience of an abuse, from which our own age and country are not perfectly exempt, may sometimes provoke a generous indignation, and extort the hasty wish of exchanging our elaborate jurisprudence for the simple and summary decrees of a Turkish cadhi. Our calmer reflection will suggest, that such forms and delays are necessary to guard the person and property of the citizen; that the discretion of the judge is the first engine of tyranny; and that the laws of a free people should foresee and determine every question that may probably arise in the exercise of power and the transactions of industry. But the government of Justinian united the evils of liberty and servitude; and the Romans were oppressed at the same time by the multiplicity of their laws and the arbitrary will of their master.
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