PART I. THE HISTORY OF THE FORMATION OF ROMAN In spite of the fact that Justinian did his utmost to digest and codify every portion of the law existing in his time, whether unwritten or written in the unsystematic form of prevalent text-books, isolated statutes or partial statutes, it is none the less impossible to comprehend the whole of the law, as finally republished, without reverting to the history of the several distinct elements out of which it had grown. Justinian's assistants in his great work seem themselves to have been fully conscious of this, inasmuch as in the Digest they preserved on all occasions a mention of the authorities and ultimate sources from which the rules of law were, on each occasion, extracted, however much they mutilated them, broke them into fragments, and cut them short. An anomaly was, indeed, thereby created, which still perplexes the student of Justinian's laws. In the course of recurring to the works of the older writers, who commented upon the law as it was in their day, —that is, at a date usually at least three hundred years earlier than the time of the composition of the Digest,many institutions, customs, practices in procedure, and rules of law are alluded to as if they were in full force. In Justinian's day, and especially as his own legislation progressed by force of the very impulse which originated the Digest itself, many or most of these had either become obsolete, were entirely transformed by time and later legis lation, or had been positively annulled. This is the case, for instance, with all the numerous rules of practice, relating to the several sorts of interdicts contained in the forty-third book of the Digest, and mostly extracted from works, in the shape of commentaries by Ulpian and Paul, written in the beginning of the third century. In Justinian's time,-as will be seen hereafter in the historical review contained in the chapter on Procedure,—the Prætor no longer existed as the chief judicial officer, and the process of issuing an interdict had given place to a merely general power of peremptory orders of all sorts, which every judge possessed for the purpose of facilitating the administration of justice. Nevertheless, it was eminently desirable, in the interests of uniform law throughout the empire, and of public order, that the exercise of this power of peremptory command should, as far as possible, be regulated by reference to intelligible and long recognized principles, such as even the emperor himself professed to defer to when intervening in the administration of justice. Such principles could be found imbedded in the older law and in rules of practice as explained and applied by the best writers in the best days; and, if they were found implicated with institutions no longer existing, they could easily be disentangled, and no real danger of confusion was hazarded. The same kind of observations apply to the frequent mention of the XII. Tables, and of the innumerable comments upon them and upon the Prætor's Edict. It was scarcely supposed that, at Constantinople in the sixth century, the broken and oracular fragments of the primitive republican code had still direct force as law, or could be cited as still binding, in an argument before a court of justice; nor could even the Prætor's Edict, as finally settled and closed in Diocletian's reign, be still held to occupy anything like its ancient place. But in the juristical comments, both on the XII. Tables and on the Edict, were contained principles of the broadest character and highest importance, which were far too deeply infused into the spirit and essence of the whole Roman system of law-even as reconstructed in Justinian's day and by him- to be neglected, and of which the treatises of the older jurists-bound up, as the language of them often is, with law and customs almost forgotten-were the best or only record. It may indeed be a matter for difference of opinion as to whether Tribonian and his coadjutors took exactly the right course in turning their enormous mass of materials to account in the special way they did. It may be objected that they have preserved too much of what was out of use, and would have acted more wisely if they had saved the time and labour of themselves and their readers, by simply expressing in the briefest language and in a systematically arranged series of terse propositions, the rules of law which were actually in force. All recollection of divided opinions, past perplexities, and settled or unsettled controversies, might thus have been prevented. The diligent readers of Savigny's writings will not sympathize much with this class of objections. They will rather object that too little of the older writers and of obsolete law has been preserved, than too much. They will feel a secret longing to have some at least of the complete text of the old writers preserved immaculate and continuous, without the constant interpolations of curt extracts from all sorts of quarters. Nevertheless, they will willingly acquiesce in those genuinely historical principles which dictated the method of the Digest. It was true that the dominating influence of the XII. Tables, the ancient jus civile, the Prætor's Edict, and the republican leges plebiscita and senatus consulta, could neither be eradicated nor superseded by any number of imperial constitutiones. The older law might be purified and luminously transfigured, but it was too closely assimilated with all that was characteristic in the character of the Roman people to be annihilated or radically reformed. Nor was there any thought of such a reform. It was Justinian's wish, in spite of his own legislative irritability and mutability, that the law should be merely ascertained, settled, and put out of the reach of further alteration. Thus it would be a hopeless task to try to master the state of the law in Justinian's day without first travelling over the steps by which it had, in the course of some thousand years, reached a condition of maturity, which enabled it to divest itself of most of what was narrowly and exclusively Roman, and to become a new source of jus civile for the civilized world in East and West. There is one insuperable difficulty in presenting at one view the historical elements of Roman law, though it is by no means peculiar to that law. It is that written and unwritten laws, ancient codes, and occasional statutes, or rather the mechanism of written legislation, have all to be exhibited successively and separately from each other. But, in fact, most of these sources of law were, in different degrees of strength from epoch to epoch, all in force at one and the same time, and largely qualified the influence, of each other. The Prætor's Edict presupposed the jus civile, and possibly followed to some extent the order of ideas, if not of paragraphs, of the XII. Tables. The place of statute legislation can only be understood by having a clear view of the gaps it came to fill in and of the state of society on behalf of which it was called for, while the imperial legislation and codification presupposes a full recognition of all the ancient modes of law-making at once. It is, however, a necessity which is not peculiar to this subject to take the several topics in order, and, on the whole, chronological order, where it is to be found, suggests the best and most natural arrangement to follow. No harm will be done if the student only bears in mind that many of the chief sources of Roman law were simultaneous in their operation, and largely qualified the character and influence of cach other. CHAPTER I. THE XII. TABLES IT has been a worthy object of competition among recent eminent commentators on Roman law to reconstruct the order of the surviving fragments of the text, if not the text itself, of the earliest monument of Roman law,-the XII. Tables. The fragments of the text are scattered up and down the works of Cicero, of the Roman historians, and Circiter A.D. of such desultory antiquarian writers as Aulus 117-180. Gellius. They abound in the Institutes and Digest of Justinian, and are freely cited in the Institutes of Gaius and in the other valuable relics which survive of the great race of jurists who were contemporaries with the Antonines. Though some hints as to the original sequence of the fragments may be gathered from the order observed in the passages commenting upon those which appear in the Digest, and from what is known of the order of the Prætor's "Perpetual Edict," yet, after all the ingenious labour which such writers as Heineccius, Gothofred, and Dirksen* have expended on the task of reconstruction, the form of the XII. Tables, as now appearing in the ordinary text-books is, in a high degree, conjectural. Nevertheless, the mere collection into a compact form of all the known component elements of the Tables is in itself a work of the highest usefulness. The history of the XII. Tables is sometimes cited in order to draw attention to the instance it presents of a sort of premature codification occurring at an early stage of national life, and Maine's Ancient Law, ch. i. * See for an account of the "Zwölfttafelliteratur," Puchta's Institutionen, vol. i. § 59. |