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great step towards political equality that the objection urged to
., those of Gaius and Cicero, and from the fragments of The jus civile.
de the Twelve Tables that have come down to us, we can collect the essential features of the private law of Rome in its earliest period, before a general advance in civilisation had modified it. This early law, which rested on custom as its foundation, and the elements of which, except so far as appeared in the laws of the Twelve Tables, were only known by tradition, was called in subsequent times the jus civile, the peculiar law of the Roman State. The history of Roman law is the history of the changes introduced into this law, of the additions made to it, and of the method adopted in the process. The notion of a body of customary law, in part unwritten, which was not abrogated, but was evaded or amplified by persons acting under the ideas of later times, is the notion which, above all others, must be embraced clearly by any. one who wishes to understand Roman law. The jus civile must always be taken as the starting point, and in tracing the history
of the later law we have always to trace how, while the jus civilestill remained in force, the law was made to suit the requirements of different periods by evading or adding to the jus civile. It was only in the later days of the Empire that the jus civile began to be swept away. When we come to speak of the contents of Roman private law, we shall have occasion to notice what were the leading features of the jus civile. We need not at present do more than say that, when a student of Roman law has made himself acquainted with its elementary doctrines, he will find that the chief of these peculiar principles, dating from an unknown antiquity, and affecting the whole body of later jurisprudence, are those which determine the position of a father of a family, the succession to his estate, and the contracts and actions relating to the chief possessions of an! agricultural proprietor.
11. The conquest of Italy and the gradual spread of Roman conquest materially altered the character of the legal Conquest of system. A branch of law almost entirely new sprang Italy. up, which determined the different relations in which the conquered cities and nations were to stand with reference to Rome itself. As a general rule, and as compared with other nations of antiquity, Rome governed those whom she had vanquished with wisdom and moderation. Particular governors, indeed, abused their power; but the policy of the State was not a severe one, and Rome connected herself with her subject allies by conceding them privileges proportionate to their importance or their services. The jus Latinum and the jus Italicum are terms familiar to all readers of Roman history. The first expressed that, with various degrees of completeness, the rights of Roman citizenship were accorded to the inhabitants of different towns, some having the commercium only, some also the connubium; but after the Social War (A.U.C. 663), the lex Julia (A.U.c. 664) and the lex Plautia (A.U.c. 665) gave the full rights of citizenship to Italy below the Po, and the Italians were distributed among the thirtyfive tribes. The jus Italicum expressed a certain amount of municipal independence and exemption from taxation, attached to the different places on which the right was bestowed. The citizens of some particular places in Italy above the Po and in the provinces possessed what was termed Latinitas, i.e. the status of being a Latin, and those possessing Latinitas were termed Latini colonarii. They had the commercium, but not the connubium, and therefore their children were not in their power, and they could not vote for
or fill public offices; and the jus Italicum was attached to certain privileged cities; but the provinces generally had no participation in either right. They were subject to a proconsul or proprætor, paid taxes to the treasury of Rome, and had as much of the law of Rome imposed upon them, and were made to conform as nearly to Roman political notions, as their conquerors considered expedient.* 12. But the contact of Rome with foreign nations produced a
much more remarkable effect on Roman law than the Change in
im introduction of a new branch of law regulating the under the position of subject nations. It wrought, or at least conPrætors.
tributed largely to work, a revolution in the legal notions of the Roman people. It forced them to compare other systems with their own. In the language of the jurists, it brought the jus gentium, that is, the law ascertained to obtain generally in other nations, side by side with the jus civile, the old law of Rome. The prætor peregrinus, who was appointed (A.U.C. 507) to adjudge suits in which persons who were not citizens were parties, could not bind strangers within the narrow and technical limits in which Romans were accustomed to move. Many of the most important parts of Roman law were such that their provisions could not be extended to any but citizens. No one, for instance, except a citizen, could have the peculiar ownership termed dominium ex jure Quiritium. But when justice and reason pronounced a stranger to be an owner, it was impossible for a prætor not to recognise an ownership different from that which a citizen would claim; and what magistrates were obliged to do in the case of strangers, the requirements of advancing civilisation soon induced them to do in the case of citizens. They recognised and gave effect to principles different from those of the municipal law of Rome. This municipal law remained in force wherever its provisions could give all that was required to do substantial justice; but when they could not, the prætor appealed to a wider law, and sought in the principles of equity a remedy for the deficiencies of the jus civile. He pronounced decrees (edicta), laying down the law as he conceived it ought to be, if it was to regulate aright the case before him. In process of time it became the custom for the prætor to collect into one edictum the rules on which he intended to act during his tenure of office, and to publish them on
* See WARNKENIG, Hist. du droit romain externe, p. 70. Geschicht, Rom. Rechts, vol. i. ch. 2.
a tablet (in albo) at the commencement of his official year. The edict, put forward at the beginning of the year of office, and running on from one prætor to another, was termed the edictum perpetuum. How much the prætor was aided in the formation of a broader and more comprehensive system of law by a change in the form of actions, will appear when we come to speak of the system of civil process. By degrees such a system was introduced and fully established, and the jus honorarium, the law of the prætors * (qui honores gerebant), was spoken of as having a distinct' place by the side, and as the complement, of the jus civile.
The prætors gave the formula of an action to the judge. For many centuries senators alone were judges until the lex Sempronia (A.U.C. 632) took away the right of the ju being judges from the senators, and gave it to the knights.' After a series of contests, the right was shared by the two orders, and extended even to persons of inferior rank, so that the 300 of the senatorial times had become 4,000 by the time of Augustus. Besides the judges placed on the annual list (in albo relatij there were the recuperatores, who were appointed to determine causes to which peregrini were parties, and who were taken from every rank for the special occasion, who sat three or more together, and who were used in cases requiring despatch. And there were also the centumviri, taken so many from each tribe, and who judged of cases of status, Quiritary property, and testamentary and intestate succession.
13. The progress of law was also much facilitated by the growth of a body of men termed juris consulti or The juris prujuris prudentes, men who studied the forms, and, in dentes. time, the principles of law, and expounded them for the benefit of their friends and dependents. They were generally among the first men of the State, and the employment was considered a natural part of a life of public service and magisterial honours. In the earlier times of the republic the patricians alone knew the days on wbicb it was or was not lawful to transact legal business, and the forms in which actions were to be brought. The story of the publishing of a collection of these forms, and of a list of the days on which business could be transacted, by Caius Flavius, is familiar to all readers of Livy. But although to a certain extent
• The term also included the edicts of the ædiles, who issued decrees in matters that came specially within their province.
† Liv. ix, 46.
the study of the law became open to all, whether patricians or plebeians, yet it does not seem to have been ever undertaken except by men of eminence. Such men used to instruct and protect the persons who sought their advice, explain the steps necessary for the successful conduct of an action, and write out the necessary forms.* They gave answers when asked as to the law on a particular point; and though they professed only to interpret the Twelve Tables, not to make laws, their notion of interpretation was so wide that it included whatever could be brought within the spirit of anything which the Twelve Tables enacted. Such answers (responsa) were of course of no legal authority ; but as the sage would frequently accompany his client † (as the questioner was called) before the magistrate, and announce his opinion, it had frequently all the effect upon the magistrate which a positive enactment would have had, and thus the responsa prudentum came to be enumerated among the direct sources of law. The names of some of these sages have been handed down to us. Cato the censor, and Severus Sulpicius, the cotemporary of Cicero, are those otherwise best known to us. In the latter days of the republic the juris prudentes were men acquainted with some portion at least of Greek philosophy, men of learning and general cultivation; and it is not difficult to understand how powerfully their authority, acting almost directly on judicial decisions, must have contributed to the change which the law underwent towards the end of the republic.
14. By far the most important addition to the system of The land of Roman law which the jurists introduced from Greek nature. philosophy, was the conception of the lex natura. We learn from the writings of Cicero whence this conception came, and what was understood by it. It came from the Stoics, and especially from Chrysippus. By natura, for which Cicero sometimes substitutes mundus, was meant the universe of things, and this universe the Stoics declared to be guided by reason. But as reason is thus a directive power, forbidding and enjoining, it is called law (lex est ratio summa insita in natura, quo jubet ea
* The duty of a jurisprudent was respondere, cavere, agere, scribere. Cic. de Orat. i. 48.
† Clienti promere jura.-HOR. Epist. ii. 104. Cliens means 'a listener.' I GIBBON, viii. 31.
$ The most important passages in Cicero, with reference to the lex naturæ, are De Leg. i. 6-12 ; De Nat. Deor. i. 14, ii. 14. 31 ; De Fin. iv. 7. The expressions used in the text are from De Leg. i. 6.