LECTURE III.

THE ROMAN LAW BEFORE JUSTINIAN.

No law-system can be understood thoroughly without some knowledge of its history and development.

The history of the Roman law from the Twelve Tables to Justinian falls naturally into three almost equal periods, coinciding nearly with the times of the republic, the heathen emperors, and the Christian emperors. 1. From 450 to 100 B. C., marked by a progressive liberalization of the law. 2. From 100 B. c. to 250 A. D., marked by the creation of a scientific law-literature. 3. From 250 to 550 A. D. (toward the close of Justinian's reign), marked by the codification of the law.

Third Period.-Its codes were the Gregorian and Hermogenian in the fourth century, the Theodosian in the fifth, and the Justinian in the sixth. Its character as a time of decline, without originality or independence, is shown in a law of the fifth century, which, after designating certain earlier law-writers as authoritative, directed the judge, when these differed, to follow the majority, only exercising his own judgment when the numbers were equal, and not always then.

Second Period.-Its scientific law-literature was produced by a class of men called jurisconsulti (jurisprudentes, jurisperiti), distinct from pleaders (oratores), judges (judices), and magistrates (chiefly praetores). The orator had to maintain his client's cause before the judex; the judex (very different from our judges) had to investigate and decide an issue presented to him in a formula from the prætor; the prætor (who held the middle step in a course of political honors) had to construct from allegations of the parties such a formula, or precise statement of the issue. All these depended on the jurisconsults for legal knowledge and counsel. The first jurisconsults were in general elderly men (as Cato the Censor, in his old age), whose lives had been passed in political and

military service; but afterward they were men who (like Cato's son) devoted their whole lives to this profession.

The law-writings of the Catos, and all others before 100 B. C., were of a merely technical character. The first scientific law-writers were Q. Mucius Scaevola and his scholar Servius Sulpicius Rufus. For about two hundred years, from Augustus to the Antonines, the jurists were divided into two schools, founded by Ateius Capito and Antistius Labeo, but named from later chiefs Sabinians and Proculians. Yet their numerous differences of opinion seem not to have depended on any general principles or tendencies.

The authority of the jurisconsults was for a long time only moral. But by an arrangement commencing under Augustus, certain of the number received a jus respondendi, by which the response of such a jurist on any law-question, when properly brought before a judex, had the full force of law; though if opposite opinions were brought from jurists thus privileged, the judex could decide for himself. These responsa prudentium contributed much to develop the Roman law-system. The same force of law belonged also to the treatises composed by these jurists, except in cases where they were found to conflict with one another. Opposite tendency in English law to undervalue the works of systematic writers.

This juristic literature is known to us chiefly by the extracts in Justinian's Digest, which appears to be in extent about a twentieth part of the works used in compiling it. But many law-books were not so used; many, perhaps, had perished before the time of Justinian. And the extracts taken for the Digest were all subjected to a process of revision and alteration. Outside of the Corpus Juris, we have a number of fragments, but only two works of much extent, viz.: 1. The Sententiae Receptae of Julius Paulus, abridged but not otherwise altered, which has come down in the Lex Romana Visigothorum; and 2. The Institutiones of Gaius, discovered in 1816 by Niebuhr in a palimpsest MS. of St. Jerome at Verona : some leaves were wanting, some undecipherable, but about nine-tenths of this most important work have been recovered.

First Period. This begins (450 B. C.) with the code of the Twelve Tables. The plebeians had complained that the laws, being unwritten, were administered by the patricians in the interest of their own order; and gained the appointment of a commission of ten (decemviri) to draw up a written code. This was in most respects a statement of the law already existing: the changes seem to have related chiefly to public law. That the laws of Athens and Sparta had much influence on this code is

not probable. In the times of Cicero and Gaius, the actual law had become widely different from that of the Twelve Tables; yet this code remained the formal basis of Roman law, until superseded by Justinian's legislation.

It has been observed already that the Roman law is not to be thought of as having had through the history of the republic and the empire the same form, or even a form nearly the same, as that which we find in the books of Justinian. On the contrary, the Justinian books only represent one stage-the last attained in ancient times-of a long process of change and development. This previous history of the Roman law now demands our attention. No system of law can be thoroughly understood without some knowledge of its earlier forms and states. To comprehend clearly what it is, you must see how it came to be so. The principle applies not less to English law than to Roman. An able English writer declares that " even now a common purchase-deed of a piece of freehold land cannot be explained without going back to the reign of Henry VIII., or an ordinary settlement of land without recourse to the law of Edward I.” There are many

who regard this state of things as not only undesirable but unnecessary. They would break loose from the past, expunge all archaic ideas and elements from the law, and construct it anew with exclusive reference to the actual conditions of the present time. this completely is a simple impossibility.

But to do

The new

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code for which such persons are sighing-the code which shall deal with present things as if there were no past, or as if the past had always been just like the present-if constructed at all, must be constructed by jurists, by men educated in the law; for only such men have the technical knowledge and the experience which such a task requires. But every educated lawyer is trained in a system which has come down from earlier ages, and bears the impress of the ages from which it has come. His mind is filled with precedents, models, conceptions, forms of thought and action, which had their origin in other times, and are not wholly adjusted to our own. His work must show the influence of these forces existing in his mind. may strive against it as much as he pleases; he may cut and change to the utmost of his power; he cannot escape from himself, from the ideas and methods which education has made part of his mental nature. He cannot produce a work which is not shaped and determined in its essential features by his own previous training. But I need not argue further to show that such a law-system, independent of the past, so as to be explainable in all its elements and features without recurring to the past, is something not to be attained. Though longed for and looked for by many people, it is a mere chimera. The Romans certainly never aimed at constructing such a system. They never thought of discarding the body of law received

from their fathers, and framing another with new materials and new foundations. Both in the code of the Twelve Tables, and in the Corpus Juris Civilis, the leading object was to represent and perpetuate the preëxisting law. It is true that the systems set forth in these two collections differ very widely from each other. But the changes which made them differ were slow and gradual, the product of slowly changing circumstances: in general, they went no further than to meet some particular want of which men had become sensible; in no one age did they bear more than a very small ratio to the whole law-system.

The history of the ancient Roman law has its alpha and omega in the code of the Twelve Tables and of the Corpus Juris Civilis. It must end with the latter, because all further progress lies in the domain of mediaval or modern history. It must begin with the former, because for earlier times there are no sufficient materials for its construction. Of the Twelve Tables themselves we have only fragments. The previous

forms and changes of the law are matters for conjecture rather than history. The historical interval of almost ten centuries which separates the Twelve Tables from the Corpus Juris divides itself naturally into three periods of nearly equal extent. They correspond in general to the three periods most prominent in the political history of Rome-the period of the republic, that of the heathen emperors, and that of