Page images

last hint was taken, after an interval of ten years, by the patricians; they consented (b.c. 451) that the powers of consuls and tribunes should for a while be suspended, and the whole authority of the state entrusted to ten commissioners, on whom was imposed the task of codifying the public and private law of Rome. In that same year they submitted to the people a code of ten tables, which, along with two tables added in the following year, were accepted, as genuine statute law, by the comjtia. These were the celebrated Twelve Tables, described by Livy as 'corpus omnis Romani iuris,' and ' fons publici privatique iuris;' as 'finis aequi iuris'by Tacitus, though in reality not so much 'finis' as a fresh starting-point for a new and vigorous legal development. 'Placuit publica auctoritate decem constitui viros, per quos peterentur leges a Graecis civitatibus, et civitas fundaretur legibus, quas in tabulas eboreas (?) perscriptas pro rostris composuerunt, ut possint leges apertius percipi, datumque est eis ius eo anno in civitate summum, uti leges et corjigerent, si opus esset, et interpretarentur, neque provocatio ab eis, sicut a reliquis magistratibus fieret. Et ita ex accedenti appellatae sunt leges duodecim tabularum, quarum ferendarum auctorem fuisse decemviris Hermodorum quendam Ephesium, exulantem in Italia, quidam retulerunt' (Pomponius in Dig. 1. 2. 2. 3 and 4).

The allusion to the Ephesian Hermodorus contained in this passage, and the reference (which is confirmed by older writers, e.g. Livy iii. 31, 32, Servius in Verg. Aen. vii. 695) to embassies sent to Greece to search out the laws of her cities, and especially those which Solon had given to Athens, have led many historians to believe that a large proportion of the decemviral legislation was derived from foreign sources, and some even to suppose that the whole of it, in substance, was Greek Iaw. It would seem that in point of fact no theory was ever wider of the truth; the conservatism of the decemviri is not their least remarkable feature to which their laws bear witness. The foreign influence was trifling, and left no traces whatever on the private portion of the code; what changes the decemviri made in pre-existing law seem to have been dictated by a sound liberal spirit, and by a conviction that it was idle to attempt to evade the inevitable, the eventual exaequatio juris, or equalisation of the two orders in the state. In such portions of their legislation as have come down to us, there are unmistakable traces of the equalising policy; the ius sacrum was to a considerable extent stripped of its exclusive character, and the law of procedure, as to which we ^ve important fragments, was settled upon a basis which gave justice a fair chance of being administered by saving from magisterial caprice the decision of most points upon which the successful conduct of an action depended. The enactment of the Twelve Tables is also direct evidence of the independent position which private law had won for itself under plebeian auspices, and at the same time starts it on a new career of development; it was no longer the peculiar province of the plebeian order; but having been sanctioned by the whole populus in its comitia, it began to be looked on more by all parties as the best security for order and prosperity. But this is part of a subject on which there is great diversity of opinion, and to which we shall shortly return—the relation, at Rome, of private to public law.

English lawyers in particular will fully appreciate the advantage which was secured by the expression of the law in a more scientific and therefore more convenient form than that in which it had hitherto been clothed. But it was a still larger boon that provision was made for its being generally known by all citizens who cared to make themselves acquainted with it. Historical analogy would perhaps lead us to suppose that the knowledge of the law had hitherto been engrossed by the patrician caste, as represented by the pontifices, who are described in a passage of Pomponius already cited (Dig. 1. 2. 2. 6) as the only masters of the legal rules and forms of procedure at that time binding. But it has already been suggested that private law was to a large degree of plebeian creation, and the sole possession of legal knowledge by a dominant aristocracy is truer of the Greek oligarchies than of Rome, of which we may, with some qualification, accept the view of the German historical school of jurists, who assert that the material law was no secret, being founded on the common legal consciousness (Rechtsbewusstsein) of the nation as evidenced and attested by its usages and customs. Still, it is of no avail to know the law, if one cannot get one's rights protected and enforced by action; and of the forms of actions, as already observed, the plebeian could know little, through their implication with the ius sacrum. The decemviral legislation introduced simplicity and uniformity into these; it was exposed in a public place for all to read, and from the fact that in Cicero's boyhood the Roman youth was used to learn the Twelve Tables by heart, it is evident that they were long used as the foundation of a legal education as, in the three centuries and a-half preceding the legislation of Justinian, a mastery of the Commentaries of Gaius was considered the proper groundwork of an adequate knowledge of the law. For nearly a thousand years they remained the only complete legislation which professed to embrace the whole positive law of Rome, and though in point of fact the greater part of their original substance was repealed or modified by subsequent enactments, the Roman citizen, even under the Empire, always continued to revere them as the solid basis of the noble system of jurisprudence by which all his rights and duties were determined; and it was only by the great work of Justinian that, nine hundred and eighty-four years after their enactment, they were formally deprived of their authority.

At this point it will be well to pause in order to look back over the centuries behind us and try to ascertain what was the material content and what the scope of the customary law which, as we have seen, was to the early Romans the only rule of life, and which was summed up and (if we may use the expression) codified in the Twelve Tables. Ausonius (Idyll xi. 61) describes the contents of the latter as 'ius triplex:'

'Sacrum, privatum, populi commune quod usquam est.'

But there is little to be said on this particular point except what can be inferred from the fragments which have been preserved to us. These relate to the procedure in an action, especially summons (Table i), execution (iii), mancipation (vi) and emancipation (iv), succession (v), curatela of furiosi (vi), furtum, iniuria, and other forms of delict (viii), and finally burial of the dead (x). As might perhaps have been expected, the only really important department of the private code upon which, so far as we know, the Twelve Tables contained no provisions, is contract.

Legal antiquaries on the continent who have accepted as substantially true the myth which ascribes the origin of Rome to the union of three tribes belonging to different ethnic stocks, two of which are by them identified as Pelasgic and Sabinehave spent much ingenuity in attempting to detect the original diversity of the elements contributed to the common stock of jurisprudence by the two dominant tribes, and to trace the gradual process by which these were blended into a homogeneous system of law. They speak of the element peculiar to the Ramnes, as opposed to that peculiar to the Quirites; the genius of the former people lay in the direction of conquest and activity in external.relations, that of the latter in the promotion of domestic order and peaceful internal development; and

1 Puchta, Institutionen i. p. 73.

the genius of each is supposed to have reflected and reproduced itself in their legal habits and in their modes of life and thought. Such speculations assuredly cannot claim our serious attention; but a question which is suggested by them is of larger interest, because the answer to it will affect our judgment upon the general character of the legal system through a great part of its history, and will determine our explanation of many of its most peculiar phenomena. It is the view of many who have deeply studied the institutions of Rome that, in its infancy, the consciousness of the people as a military state, which had perpetually to be defending its very existence with the sword, asserted itself so irresistibly as to colour the law of Rome to the very end of its history. In periods of grave national peril citizens always realise most fully their membership one with another, and are most ready to sacrifice the fleeting interest of the individual to the higher and more engrossing requirements of the state. Hence is inferred a fact which (as it is represented) left its mark upon Roman law even in the age of Justinian, twelve hundred years after the epoch which we are now considering; the fact, namely, that in the earliest period of the nation's history almost every relation with which jurisprudence has ever had any concern was dominated by public law, or by the idea, expressing itself in law, that beside, or apart from, the state, the citizen is as nothing, and that he has no ground for complaint if his family life, his religion, his dealings with his fellow men, his very liberty and life are treated principally as means to the end of government, and placed under state control. The position of the family in the state economy has been already indicated. The very existence of the people, as an organic whole, depended on the maintenance of the gentes through families; and as a new family could arise only from the lawful wedlock of two citizens, marriage was made a public act and placed under sacerdotal supervision; the solemn rite of confarreatio (Gaius i. 112), by which alone it could be contracted, was a ceremony of deep public and religious import. Again, through lack of children, or through the death of such as might be born, a family might be in danger of dissolution; hence the supreme political importance of the institution led to the recognition of adoption as an artificial means of perpetuating its existence; and adoption, too, was a public act, accomplished under the auspices of the priestly college before the comitia centuriata.

There is perhaps less probability in the alleged extension to the field of property of this domination of public over private law. The old principle of law, it is said, laid it down that conquered land and captured booty belonged, primarily, to the state, and that it was through the state alone that it could become the property of individuals. Thus, according to the view now under consideration, no citizen originally owned an inch of Roman soil; he could only possess and enjoy it by permission of the populus, and it remained ager publicus until the settlement of large numbers of strangers on Roman territory had brought into prominence the legal distinction between civis and peregrinus, a distinction which then became emphasised by the former being held capable, the latter incapable, of owning land ex iure Quiritium. But to maintain the principle that all res mobiles belonged, ultimately, to the state, was less easy. On one explanation, however, of a famous distinction of Roman law—that of 'res mancipi' and 'res nec mancipi'—the traces of that principle were retained until the distinction itself was swept away by Justinian. It is suggested that the idea that all res mobiles belong ultimately to the state survived only in connection with certain subjects of property— things, in other words, which usually form the staple of military booty, and of which individuals were thus most likely to have got possession by concession from the state. This idea, it is maintained, led to the introduction of a peculiar mode of alienation for these kinds of objects, namely, mancipatio, in which the sanction of the populus to the transaction was supplied by the presence of a definite number of witnesses who were full citizens of Rome (Gaius i. 119)But whatever may be the truth as to the distinction of res mancipi and res nec

1 This is but one of many views as to the origin of the distinction. Sir Henry Maine (Ancient Law p. 275) says: 'The explanation which appears to cover the greatest number of instances is, that the objects of enjoyment honoured above the rest were the forms of property known first and earliest to each particular community, and dignified therefore emphatically with the designation of Property. On the other hand, the articles not enumerated among the favoured objects seem to have been placed on a lower standing, because the knowledge of their value was posterior to the epoch at which the catalogue of superior property was settled. They were at first unknown, rare, limited in their uses, or else regarded as mere appendages to the privileged objects. Thus, though the Roman res mancipi included a number of moveable articles of great value, still the most costly jewels were never allowed to take rank as res mancipi, because they were unknown to the early Romans.' Ihering thinks that the res mancipi were those objects of property essential to the maintenance of the joint family life: 'ohne beides [i. e. free persons and res mancipi] lasst ]es sich ein ordentliches Hauswesen, eine gesunde Wirthschaft gar nicht denken' (Geist des rbmischen Rechts ii. p. 165). Other explanations are based on the actual market value (Kostbarkeit) of the objects (Cujacius, Bynkershoek), or on the supposition that a special return of res mancipi was required in the census (Puffendorf, Gottling). The matter is fully discussed, and the divergent views stated, in Bocking, Institutionen § 73.


« PreviousContinue »