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A BRIEF ACCOUNT
Rise and Progress of the Roman Law.
X HE Roman state was at first governed solely by the authority of Romulus; but, when the people were increased, he divided them into thirty Curia, which he constantly assembled for the confirmation of his laws: and this practice of consulting the people was afterwards followed by the Roman kings, all whose laws were collected by Srxtus Papirius, and called jus Papirianum, from the name of their compiler. But, after the expulsion of Tarauin and the establishment of the republic, the greatest part of those regal laws soon became obsolete; and those, which still remained in force, related chiefly to the priesthood. It thus happened, that the Romans for many years laboured under great incertainty in respect to law in general; for, from the commencement of the consular state to the time of establishing the xn tables, they were not governed by any regular system. But at length, the people growing uneasy at the arbitrary power of their magistrates, it was resolved, after much opposition from the patricians, that some certain rule of government should be fixed upon: and, to effect this purpose, a decemvirate was first appointed, composed solely of senators, who, partly from the laws of Greece and partly from their own laws stilteubsisting, framed ten tables, which, in the year of Rome 303, were submitted to the inspection of the people, and highly approved of. These however were still thought to be deficient; and therefore in the year following, when a new decemvirate was appointed, which consisted of seven patricians and three plebeians, they added two tables to the former ten: and now the whole was regarded but as one body of law, and intitled, by way of eminence, the twelve tables. But, although these new collected laws were most deservedly in the highest esteem, yet their Dumber was soon found insufficient to extend to all matters of controversy, their conciseness was often the occasion of obscurity, and their extraordinary severity called aloud for mitigation. It therefore became a consequence, that the twelve tables continually received some explanation, addition, or alteration, by virtue of a new law, a senatorial decree, or a plebiscite. And here it will be proper to observe, how they differ: a. plebiscite was an ordinance of the plebeians or commonalty, which had the force of a law, without the authority of the senate; and a senatu^-consultum, or senatorial decree, was an order made by the senators assembled for that purpose; but to constitute a law, properly so called, it was necessary, that it should first be proposed by some magistrate of the senate, and afterwards be confirmed by the people in general. Recourse was also had to the interpretation and decisions of the learned, which were so universally approved of, that, although they were unwritten, they became a new species of law, and were called auctoritas prudentum and jus civile. It must here be ob-' served, that, soon after the establishment of the twelve tables, the learned of that time composed certain solemn forms, called actions of law, by
Civic .3 Vid. Pomponium, ff. 1. t. 2. Be From the commencement of the consular
*riginejuru. state] The consular state was established
in the year U. C. 245, and the laws of the
Jut Papirianum.'] "Is liber appellatur xii tables were not perfected, till the year
"jui civile Papirianum, non quia Papirius 304. "de suo quiequam adjecit, sed quod leges
"sine ordine latas in unum composuit." vid. Were submitted to the inspection of the ff. 1.t- 2.1. 2. This body of law is not now people.] "Turn legibus condendis opera extant, nor any part of it, except a short "d:ibatur,inKentiquehominumexpectatioextract of 8 or 1U lines, which may be read "ne propositis decern tabulis, pnpulum ad in the 3d book of Macrebivt's Saturnalia, "concionem advocaverunt; et, quod bocap. 11. •« nun, faustum, felixque reipubficje, ipsis",
"liberisque eorum esset, ire et legere leges "propositas jussere: ae, quantum decern "hominum ingeniis providcri potuerit, om"nibus, summis, infimisque jura zquasse; "plus pollere mullorum ingenia consilia"que. Versarent in animis secum unam"quamque rem; agitarent deinde sermoni"bus; atque in medium, quid in quaque re "plus, minusve esset, conferrent. Eas le"ges habiturum populum Romanum, quas "consensus omnium non jussis.se latasma"gis, quam tulisse, vidcri posset" J-iv. 1. "iii. tap. 33, 34.
And their extraordinary severity.] One of the laws, here hinted at, is the following:
AST, SI Pl.l'RES EHUST HEI, TEM IIS
Nundanto. Grav. op. p. 284. ». t. " If a
Such is the sense, in which this law tins been generally understood by both ancients and moderns. But it has lately received quite a new construction, very much to the honour of ancient Rome, from two authors, not less distinguished for their abilities in literature than their knowledge in the civil law, who from many authorities interpret the word secant o, as implying simply a division, and the vmrd partis, as denoting the varts of the debtor's estate, and not the
parts of his body; so that they understand the expression partis secanto, not as a direction, that the body of an insolvent debtor shall be cut into pieces, but as if it meant, that his estate and services should bedivided among his creditors in proportion to their respective claims, vid. BynJeershoei's work's, vol. 1. obs. 1. and Dr. Taylor's commentary, Dc inope debitore dissecando.
But the reader is left to frame his own judgment of this interpretation, when he has read the apology for this law, which Aulas Grllius has given us in the person of'Crcilius; and also the opinion of Tertullian, who was a lawyer by profession." Nihil profecto ksays Gtcilius'] " immitius, nihil immanius, "nisi, ut re ipsa apparet, eo consilio tanta "immanius peenx denunciata est, ne ad "earn unquam perveniretur; addict namque "nunc etvinririmultos videmus; ilissectum "esse antiquitus neminem, equidem neque. "legi neque audivi" Aulus Gell. lib. xx. cap. 1. Grav. lib. vii. cap. 72.
And 'I'erttUlian writes as follows. "Sed "et, judicalos in partes secari a creditor: "bus, leges erant; consensu tamen publico "crudelitas postea erasa esL" Apologet. cap. 4.
Solemn forms.] " Civile jus, repositum "in penetralibua pontificum, Cn. Flavius "evulgavit, fastosque circa forum in albo "proposuit, ut, quando lege agi posset, "sciretur." Liv. lib. ix. cap 46. " Vetcres, "qui huic scientix prarfuerunt, obtinendae "atque augend» potent iz sure causa, per"vulgari artem suam noluerunt, tSV." Cic. de orut. lib. 1. c. 46. "Jus civile per mulu "sxcula inter sacra cxremoniasque Deo"rum immortalium solisque pontificibus "parvx; prope in singulis Uteris atque in
Rise and Progress of the Roman Laxv. xi
which the process of all courts and several other acts, as adoption, emancipation, &c. were regulated. These forms were for above a century kept secret from the public, being in the hands only of the priests and magistrates; but about the year U. C. 448 they were collected and published by one Flavins, a scribe; and, from him, called the Flavian law; for which acceptable present the people in general showed many instances of their gratitude. But, as this collection was soon found to be defective, another was afterwards published by Sextits Mlius, who made a large addition of many new forms, which passed under the title of jus jElianum, from the name of the compiler.
In process of time there also arose another species of law, called the praetorian edicts; which, although they ordinarily expired with the annual office of the praetor, who enacted them, and extended no further than his jurisdiction, were yet of great force and authority: and many of them were so truly valuable for their justice and equity, that they have been perpetuated as laws.
These were the several principal parts of the Roman law, during the free state of the commonwealth; but, after the re-establishment of monarchy in the person of Augustus, the law received two additional parts; the imperial constitutions and the answers of the lawyers.
The constitutions soon became numerous, but were not framed into a body, till the reign of Constantine the great; when Gregorius and Hermogenes, both lawyers of eminence, collected in two codes the constitutions of the pagan emperors, from the reign of Adrian to that of Dioclesian inclusive: but these collections were not made by virtue of any public authority, and are not now extant.
Another code was afterwards published by order of the emperor Thetdosius the younger, which contained the constitutions of all the christian emperors, clown to his own time; and this was generally received both in the eastern and western empires.
"notum." Vol. Max. 1. ii. c 5. "terpunctionibus occupatz, Isfc. tsV. ls*c."
Pro Miurtcna, cap 6. lifiitt. ad Att. lib. vi.
The Flavian law.'] " Postea, cum Ap- ep. 1. fie oratore, lib. 1. cap. 41.
"pirn* Claudius proposuisset, et ad formam But, notwithstanding this, the use of par
"redegiaset has actiones, Cnaeus Flavius ticular forms was very strictly adhered to,
"scriba ejus, libertini filiiis, subreptum li- till the reign of Corutantine the emperor,
"brum populo tradidit; et adeo gratum fuit who, to his great honour, put an end to these
"id munuspopulo,utTribunus plebis fieret, subtilities. His rescript to Marcellinus is in
"Senator, et jEililis curulis, isfc." ff' 1. these words. " Juris formulae, aucupatione
! 2 Ik orig. juris. Liv. lib. ix. sub fin. Val. "syllabarum insidiantes, cunctorum acti
Max. Kb. ii cap. 5. Aul. Gelt lib vi. c. 9. "bus radicitus amputentur." Cod. 2. t. 58.
Tully, in his oration for Murana, is
remarkably severe upon these forms, and Gregoriut and Htrmogenet.~\ vid. Gotho
treats both them and their abettors with that frtdi prolegom. ad cod. Theodosianum, cap
just contempt, which they most certainly 1. et Heineccii hist. jur. civ. lib. 1. cap. 5
deserve. "Primum dignitas in tarn tenui sect 368, is"c. "scientia quz potest esse? res cnim sunt
But these three codes were still far from being perfect; for the constitutions, contained in them, were often found to be contradictory; and they warned, but too plainly, that regulation, which they afterwards underwent through the care of Justinian; who in the year of Christ 528 ordered the compilation of a new code, which was performed and published the year following by Tribonian and others; the three former codes being suppressed by the express ordinance of the emperor. When this work was thus expeditiously finished, the emperor next extended his care to the Roman law in general, in order to render it both concise and perfect. The answers and other writings of the ancient lawyers had long since acquired the full force of a law, and were now so numerous as to consist of near two thousand volumes; from which, by command of Justinian, the best and most equitable opinions were chosen; and being first corrected, where correction was necessary, were afterwards divided into fifty books, called digests or pandects: and, that they might be the more firmly established, the emperor not only prohibited the use of all other law-books, but also forbad, that any comment should be written upon these his new digested laws, or that any transcript should be made of them with abbreviations. But, during the time of compiling the di
By the express ordinance.] " Hunc igitur "codicem in sternum vuliturum judicio tui "culminis intimare perspeximus, ut sciunt "omnes tam litigatores quam disertisaimi "advocati, nullatenus eis licere de cxtero "constitutiones ex veteribus tribus codici"bus, vel ex iis, quae novellx constitutiones "ad prasens tempus vocabantur, in cogni"tionalibus recitare certaminibus, sed so"lum, eidem nostro codici insertis, consti"tutionibus necesse est uti; falsi crimini "subdendis his, qui contra hoc facere ausi "fuerint," iStc. De Justirdaneo codice confirmando.
Near two thousand volumes.] "Fostea "vero, maximum opus aggredientes, ipsa "vetustatis studiosiasima opera, jam pene "confusa et dissoluta, eidem viro excelso "(Triboniano) permisimus tam colligere "quam certo moderamine tradere. Sed, "cum omnia percontabamur, a prxfato viro "excelso suggestum, duo pene millialibro"rum esse conscripta, qux necesse esset "omnia et legere et perscrutari; quod cce"lesti fulgore, et sumrax trinitatis favore, "confectum est, secundum nostra mandata, "qux ab initio ad memoraUim virum excel"sum tecimus, et in quinquaginta libros "omne, quod utilissimum erat, collectum "est; ct omnes ambiguitates decisx, nullo "■ seditioso relicto; nomenque libris impo•' suimus di^estorum seu pandectarttm." <7od. 1. t. 17. 1. ?. JDcvet.jiir. enuel.
Prohibited the use of all other law-books.] "Has itaque leges et adorate et observate, "omnibus antiquioribus quiescentibus, ne"moque vestrum audeat velcomparare eas "prioribus, vel, si quid dissonans in utro"que est, requirere; quia omne, quod hie "positum est, hoc unicum et solum obser"vari censemus; nee in judicio nee in alio "certamine, ubi leges necessarix sunt, ex a"II is libris, nisi ab institutionibus, nostrisque "digestis, et constitutionibus a nobis com"positis, aliquid vel recitare vel ostendere "conetur; nisi temerator velit falsitatis cri"mini subjectus una cum judice, qui eorum "audientiam patiatur, poenis gravissimis la"borare." Cod. 1.1 17.1. 2. § 19.
"Hoc autem tempestivum nobis videtur "et in prxsenti sancire, ut nemo neque "eorum, qui in prxsenti juris peritiam lia"bent, neque, qui postea fierent, audeat "commentaries his legibus adnectere; nisi "velit eas in Grxcam vocem transformare "sub eodem ordine eademque consequen"tia, sub qua et voce Romana positx sunt; "hoc quod Grxci xar* xoSx dicunt," lie. Cod 1.1. 17.1. 2. J 21.
With abbreviations.] "Eandem autem "pocnam falsitatis constituimus et adversus "cos, qui in posterum leges nostras, per "siglorum obscuritates, ausi fuerint con"scribere; omnia enim, id est, et nomina "prudentum, et titulos, et librorum nume*' ros, per conseqttentias literarum volumus,
gests, it was thought expedient by Justinian, for the benefit of students, that an abridgment should be made of the whole Roman law; which work was soon performed in obedience to his order, and confirmed with the digests, under the title of institutions.
The emperor afterwards, upon mature deliberation, suppressed the first edition of his code, and published a second, which he intiiled Codex repetitce preelections, having omitted several useless laws, and inserted others, which were judged serviceable to the state.
The JustinianAaw now consisted of three parts, the institutions, the digests, and the second code. But the emperor, after the publication of the second code, continued from time to time to enact diverse new constitutions or novels, and also several edicts; all which were collected after his decease, and became a fourth part of the law.
The 13 edicts of Justinian and most of the novek were originally conceived in the Greek tongue; and so great was the decline of the Roman language at Constantinople within forty years after the death of this emperor, that his laws in general were not otherways intelligible to the major part of the people, than by the assistance^"arGreek version: but, notwithstanding thisaisadvantage, they still subsisted intire^ till the publication of the Basilica, by which the east was governed, till the dissolution of the empire. _ .
"non per sigla, manifestari." Cod. 1.1.17. I. 2. $ 22.
Confirmed with the Digests.'] "Leges "autem nostras, qua: in his codicibus, id "est, institutionum seu clementorum et di"gestonun, posuimus, suum obtinere robur "ex tertio nostro felicissimo sancimus con"sulatu praesentis duodecimal indictionis, "tertio calendas januarias, in omne acvum "viluuras, &c." Cod. 1. t. 17. L 2. $ 23.
Suppressed the first edition of his code.] "Nemini in posterum concedimus, vel "ex decisionibus nostris, vel ex aliis con"stitutionibus, quas antca fecimus, vel ex "prima Justinianci codicis editione, aliquid "rccitare; sed, quod in pra-senti purgato et "renovatocodicenostroscriptuminvenitur, "hoc tantummodo in omnibus rebus et ju"diciis et obtineat et recitetur: cujus scrip"turam, ad similitudinem nostrarum insti. "tut ion urn et digestorum, sine ulla signo"rum dubietate conscribi jussimus." De emendatione cod § 5
Basilica.'] " Versionibns iuris Justinianei "Graecis, et novellis eadem lingua scriptis, "in foris scholisque utcbantur, donee, de "eoin compendium mittendo, sxculo nono "cogitare inciperent im]>eratores Byzanti
"ni. Ex his piimum Basilius Macedo anno "838 ediderat r-pxiifct rut mum, quod con"stabat titulis quadraginta. Deinde Leo "nfes, patri Basilio succedens,coUectionem "illam paternam perfecit, eamqiietub titu"lo <TiaTa;ia» /3cnnxini>» promulgavit, anno "Christi 886. Denique subsecutus Leonem "Constantinus, cognomento Porphyroge"neta, paternum opus sub incudem revoca"vit, et libros illos Bamxotuv publicavit sub "initimn sxculi decitni. Et hi quidem sunt "libri illi Ba<nxix«v, ex Grarca institutionum, "pandectarum, codicis versione, Justinia"ni novellis etedictis tredecim, nee non ex "juris-consultorum quorundam orientalium "paratitlis, aliisque libris, quin et patribus "et conciliis collecti; ita tamen ut multa "omissavideamus, quiefortassis tumabusu "rccesserant, multas etiam leges in com"pendium contractas, midta denique ex "postei-inrum principum legibus et consti"tutionibus addita animadvertaraui. Opus "istud in sexaginta libros divisum, pneter "pauca, qua: nonduin integra repenri po"tuerunt, cum glossis gracce et latine edi"turn est a Car. Annib. Fttbrotto, Paris. "1647. fol. vol. vii." vid. Ueintccii hist, jur. civ. 1. 1. §405.
The dissolution of the empire] Constantinople was taken by the Turin, and a period