SOURCES OF ROMAN JURISPRUdence.

195

classici, those of the first class, (Ascon. in Cic. Gell. vii. 13.) to prevent the extinction of opulent families.

Various arts were used to elude this law. Sometimes one left his fortune in trust to a friend, who should give it to a daughter or other female relation; but his friend could not be forced to do so, unless he inclined, Cic. de Fin. ii. 17. The law itself, however, like many others, on account of its severity, fell into disuse, Gell. xx. 1.

These are almost all the Roman laws mentioned in the classics. Augustus, having become sole master of the empire, Tacit. Ann. i. 2., continued at first to enact laws in the ancient form, which were so many vestiges of expiring liberty (vestigia morientis libertatis), as Tacitus calls them: but he afterwards, by the advice of Mæcenas, Dio. lii., gradually introduced the custom of giving the force of laws to the decrees of the senate, and even to his own edicts, Tacit. Annal. iii. 28. His successors improved upon this example. The ancient manner of passing laws came to be entirely dropped. The decrees of the senate, indeed, for form's sake, continued for a considerable time to be published; but at last these also were laid aside, and every thing was done according to the will of the prince.

The emperors ordained laws-1. By their answers to the applications made to them at home or from the provinces, (per RESCRIPTA ad LIBELLOS supplices, epistolas, vel preces.)

2. By their decrees in judgment or sentences in court (per DECRETA), which were either INTERLOCUTORY, i. e. such as related to any incidental point of law which might occur in the process; or DEFINITIVE, i. e. such as determined upon the merits of the cause itself, and the whole question.

3. By their occasional ordinances (per EDICTA vel CONSTITUTIONES), and by their instructions (per MANDATA) to their lieutenants and officers.

These constitutions were either general, respecting the public at large; or special, relating to one person only, and therefore properly called PRIVILEGIA, privileges, Plin. Ep. x. 56, 57.; but in a sense different from what it was used in under the republic. See p. 21.

The three great sources, therefore, of Roman jurisprudence were the laws (LEGES) properly so called, the decrees of the senate (SENATUS CONSULTA), and the edicts of the prince (CONSTITUTIONES PRINCIPALES). To these may be added the edicts of the magistrates, chiefly the prætors, called JUS HONORARIUM, (see p. 112.) the opinions of learned lawyers (AUCTORITAS vel RESPONSÁ PRUDENTUM vel Juris consultorum, Cic. pro Muren. 13. Cæcin. 24.), and custom or long usage (CONSUETUDO vel MOS MAJORUM), Gell. xi. 18.

The titles and heads of laws, as the titles and beginnings of books, (Ovid. Trist. i. 7. Martial. iii. 2.) used to be written with vermilion (rubrica vel minio) [Hor. Sat. ii. 7. 98.]: hence, RUBRICA is put for the Civil Law: thus, Rubrica vetavit, the laws have forbidden, Pers. v. 90. Alii se ad ALBUM (i. e. jus prætorium, quia prætores edicta sua in albo proponebant), ac RUBRICAS (i. e. jus civile) transtulerunt, Quinctil. xii. 3. 11. Hence Juvenal, Perlege rubras majorum leges, Sat. xiv. 193.

196

CONSTITUTIONS OF THE EMPerors.

The Constitutions of the emperors were collected by different lawyers. The chief of these were Gregory and Hermogenes, who flourished under Constantine. Their collections were called CODEX GREGORIANUS and CODEX HERMOGENIANUS. But these books were composed only by private persons. The first collection made by public authority was that of the Emperor Theodosius the younger, published A. C. 438, and called CODEX THEODOSIANUS. But it only contained the imperial constitutions from Constantine to his own time, for little more than a hundred years.

It was the Emperor JUSTINIAN that first reduced the Roman law into a certain order. For this purpose he employed the assistance of the most eminent lawyers in the empire, at the head of whom was TRIBONIAN.

Justinian first published a collection of the imperial constitutions, A. C. 529, called CODEX JUSTINIANUS.

Then he ordered a collection to be made of every thing that was useful in the writings of the lawyers before his time, which are said to have amounted to 2000 volumes. This work was executed by Tribonian, and sixteen associates, in three years, although they had been allowed ten years to finish it. It was published A. 533, under the title of Digests or Pandects (PANDECTÆ vel DIGESTA). It is sometimes called, in the singular, the Digest or Pandect.

The same year were published the elements or first principles of the Roman law, composed by three men, Tribonian, Theophilus, and Dorotheus, and called the Institutes (INSTITUTA). This book was published before the Pandects, although it was composed after them.

As the first code did not appear sufficiently complete, and contained several things inconsistent with the Pandects, Tribonian and other four men were employed to correct it. A new code, therefore, was published, xvi. Kal. Dec. 534, called CODEX REPETITÆ PRÆLECTIONIS, and the former code declared to be of no further authority. Thus in six years was completed what is called CORPUS JURIS, the body of Roman law.*

* "It is well known that the decisions of certain lawyers obtained the force of laws. In a rescript (rescriptum) of Constantine, dated in the year 327, we find the highest authority ascribed to the opinions of Julius Paulus, who flourished at the close of the second and commencement of the third century. After an interval of nearly one hundred years, appeared another imperial constitution, intended to regulate the number and weight of legal opinions. The judges are bound to decide points of law according to the number of accredited opinions; when the numbers are equal, and the decision of Papinian can be produced on one side of a question, his authority must be allowed to preponderate, qui ut singulos vincit, ita cedit duobus; and it is only in the case of a perfect equilibrium of legal opinions, that they are left to the full exercise of their own discrimination.". Codex Theodosianus, lib. i. tit. iv. p. 24. ed. Wenck. Encyc. Britann. Art. Civil Law.

"By a constitution which has lately been discovered, and which bears the date of 435, Theodosius had invested those commissioners (eight in number) with power to retrench what was superfluous, to add what was wanting, to change what was ambiguous, and to correct what was incongruous. Justinian afterwards invested his commissioners with more ample powers: they were even authorised to consolidate several constitutions into one: and we may presume that neither of the two codes exhibited the imperial laws, or at least a large proportion of them, in their original state." "The Gothic conquerors of the West permitted their Roman subjects to enjoy

INSTITUTES, PANDECTS, ETC. JUSTINIAN CODE.

197

But when new questions arose, not contained in any of the abovementioned books, new decisions became necessary, to supply what was wanting, or correct what was erroneous. These were afterwards published, under the title of Novels (NOVELLE, sc. constitutiones), not only by Justinian, but also by some of the succeeding emperors. So that the Corpus Juris Romani Civilis is made up of these books, the Institutes, Pandects, or Digests, Code, and Novels.

The Institutes are divided into four books; each book into several titles or chapters; and each title into paragraphs (§), of which the first is not numbered; thus, Inst. lib. i. tit. x. princip. or, more shortly, I. 1. 10. pr. So, Inst. l. i. tit. x. § 2. - or, I. 1. 10. 2.

The Pandects are divided into fifty books; each book into several titles; each title into several laws, which are distinguished by numbers; and sometimes one law into beginning (princ. for principium) and paragraphs; thus, D. 1. 1. 5. i. e. Digest, first book, first title, fifth law. If the law is divided into paragraphs, a fourth number must be added; thus, D. 48. 5. 13. pr., or, 48. 5. 15. 13. 3. Sometimes the first word of the law, not the number, is cited. The Pandects are often marked by a double f; thus, ff.

The Code is cited in the same manner as the Pandects, by Book, Title, and Law: the Novels by their number, the chapters of that number, and the paragraphs, if any; as Nov. 115. c. 3.

The Justinian code of law was universally received through the Roman world. It flourished in the East until the taking of Constantinople by the Turks, A. 1453. In the West it was in a great measure suppressed by the irruption of the barbarous nations, till it was revived in Italy in the 12th century by IRNERIUS, who had studied at Constantinople, and opened a school at Bologna under the auspices of Frederic I., Emperor of Germany. He was attended by an incredible number of students from all parts, who propagated the knowledge of the Roman Civil Law through most countries of Europe; where it still continues to be of great authority in courts of justice, and seems to promise, at least in point of legislation, the fulfilment of the famous prediction of the ancient Romans concerning the eternity of their empire.

JUDICIAL PROCEEDINGS OF THE ROMANS.

THE Judicial proceedings (JUDICIA) of the Romans were either Private or Public, or, as we express it, Civil or Criminal: (Omnia judicia aut distrahendarum controversiarum aut puniendorum maleficiorum causa reperta sunt), Cic. pro Cæcin. 2.

the benefit of their own laws; and a compendium of these laws, containing an abridgment of the three codes of Gregorius, Hermogenianus, and Theodosius, together with some new constitutions (Novella), and an epitome of the Institutes of Caius, extracts from the Sententia of Paulus, and the Books of Papinian, was prepared under the auspices of Alaric, king of the Visigoths; and an interpretation or explanation is added to all the books, except to the epitome of Caius. When the writers of the middle ages quote the Theodosian laws, they very commonly refer, not to the text, but to the commentary, which gradually superseded the text."— Ibid.

198

CIVIL TRIALS SUMMONING TO COURT.

1. (JUDICIA PRIVATA), CIVIL TRIALS.

JUDICIA Privata, or Civil Trials, were concerning private causes, or differences between private persons, Cic. de Orat. i. 38. Top. 17. In these at first the kings presided, Dionys. x. 1., then the consuls, Id. & Liv. ii. 27., the military tribunes and decemviri, Liv. iii. 33.; but, after the year 389, the Prætor Urbanus and Peregrinus. See p. 110, 111.

The judicial power of the Prætor Urbanus and Peregrinus was properly called JURISDICTIO, (quæ posita erat in edicto et ex edicto decretis ;) and of the prætors who presided at criminal trials, QUÆSTIO, Cic. Verr. i. 40, 41. 46, 47. &c. ii. 48. v. 14. Muren. 20. Flacc. 3. Tacit. Agric. 6.

The prætor might be applied to (ADIRI POTERAT, COPIAM vel POTESTATEM SUI FACIEBAT) on all court days (diebus fastis); but on certain days he attended only to petitions or requests (POSTULATIONIBUS VACABAT); so the consuls, Plin. Ep. vii. 33., and on others, to the examination of causes (COGNITIONIBUS), Plin. Ep. vii. 33.

On court-days, early in the morning, the prætor went to the Forum, and there, being seated on his tribunal, ordered an Accensus to call out to the people around that it was the third hour; and that whoever had any cause (qui LEGE AGERE vellet) might bring it before him. But this could only be done by a certain form.

I. VOCATIO IN JUS,

OR SUMMONING TO COURT.

If a person had a quarrel with any one, he first tried to make it up (litem componere vel dijudicare) in private; (intra parietes, Cic. pro P. Quinct. 5. 11. per disceptatores domesticos vel operá amicorum, Cæcin. 2.)

If the matter could not be settled in this manner, Liv. iv. 9., the plaintiff (ACTOR vel PETITOR) ordered his adversary to go with him before the prætor (in jus vocabat), by saying, IN JUS VOCO TE: IN JUS EAMUS: IN JUS VENI: SEQUERE AD TRIBUNAL IN JUS AMBULA, or the like, Ter. Phorm. v. 7. 43. 48. If he refused, the prosecutor took some one present to witness, by saying, LICET ANTESTARI? May I take you to witness? If the person consented, he offered the tip of his ear (auriculam opponebat), which the prosecutor touched, Horat. Sat. i. 9. 76. Plaut. Curcul. v. 2. (See p. 56.) Then the plaintiff might drag the defendant (reum) to court by force (in jus rapere), in any way, even by the neck, (obtorto collo, cervice adstricta), Cic. & Plaut. Pœn. iii. 5. 45. Juvenal. x. 88., according to the law of the Twelve Tables; SI CALVITUR (moratur) PEDEMVE STRUIT (fugit vel fugam adornat), MANUM ENDO JACITO, injicito, Festus. But worthless persons, as thieves, robbers, &c. might be dragged before a judge without this formality, Plaut. Pers. iv. 9. v. 10.

ACTIONEM EDERE, POSTULARE, DARE.

199

By the law of the Twelve Tables, none were excused from appearing in court; not even the aged, the sickly, and infirm. If they could not walk, they were furnished with an open carriage (jumentum, i. e. plaustrum vel vectabulum), Gell. xx. 1. Cic. de Legg. ii. 23. Horat. Sat. i. 9. 76. But afterwards this was altered, and various persons were exempted; as, magistrates, Liv. xlv. 37., those absent on account of the state, Val. Maxim. iii. 7. 9. &c.; also matrons, Id. ii. 1. 5., boys and girls under age, D. de in jus vocand., &c.

It was likewise unlawful to force any person to court from his own house, because a man's house was esteemed his sanctuary (tutissimum refugium et receptaculum.) But if any one lurked at home to elude a prosecution, (si fraudationis causâ latitarit, Cic. Quint. 19.) he was summoned (evocabatur) three times, with an interval of ten days between each summons, by the voice of a herald, or by letters, or by the edict of the prætor; and if he still did not appear (se non sisteret), the prosecutor was put in possession of his effects (in bona ejus mittebatur), Ibid.

If the person cited found security, he was let go: SI ENSIET (si autem sit, sc. aliquis), QUI IN JUS VOCATUM VINDICIT, (vindicaverit, shall be surety for his appearance), MITTITO, let him go.

If he made up the matter by the way (ENDO VIA), the process was dropped. Hence may be explained the words of our Saviour, Matt. v. 25. Luke, xii. 58.

II. POSTULATIO ACTIONIS,

REQUESTING A WRIT, AND GIVING BAIL.

If no private agreement could be made, both parties went before the prætor. Then the plaintiff proposed the action (ACTIONEM EDEBAT, vel dicam scribebat, Cic. Verr. ii. 15.) which he intended to bring against the defendant (QUAM IN REUM INTENDERE VELLET), Plaut. Pers. iv. 9., and demanded a writ (ACTIONEM POSTULABAT) from the prætor for that purpose. For there were certain forms (FORMULE) or set words (VERBA CONCEPTA) necessary to be used in every cause (FORMULE DE OMNIBUS REBUS CONSTITUTE), Cic. Rosc. Com. 8. At the same time the defendant requested that an advocate or lawyer might be given him, to assist him with his counsel.

There were several actions competent for the same thing. The prosecutor chose which he pleased, and the prætor usually granted it (ACTIONEM vel JUDICIUM DABAT vel REDDEBAT), Cic. pro Cacin. 3. Quint. 22. Verr. ii. 12. 27., but he might also refuse it, ibid. et ad Herenn. ii. 13.

The plaintiff, having obtained a writ from the prætor, offered it to the defendant, or dictated to him the words. This writ it was unlawful to change (mutare formulam non licebat,) Senec. Ep. 117.

The greatest caution was requisite in drawing up the writ (in actione vel formulá concipienda), for if there was a mistake in one word, the whole cause was lost, Cic. de Invent. ii. 19. Herenn. i. 2. Quinctil. iii. 8. vii. 3. 17. Qui plus petebat quàm debitum est, causam perdebat,