CH. III.] ROMAN LAW AND COURTS. 61 CHAPTER III. SKETCH OF THE ROMAN LAW AND THE ROMAN The Forum, where the immortal accents glow, burns, with Cicero. BYRON. BEFORE we proceed to give an account of the profession of an Advocate in ancient Rome, it will be useful to inquire briefly, what was the nature of the Roman law with which he had to make himself acquainted, and what were the tribunals before which he had to plead. It will be sufficient for our present purpose to give merely a slight and imperfect sketch; for the difficult subject of the principles and rules of the early Roman law would require an elaborate treatise of itself, if it were discussed with the fulness which it admits of and deserves. Here, it is only necessary to trace the outlines of the different heads of law as administered at Rome, without staying to investigate the processes and forms peculiar to each separate jurisdiction, or discuss the rights of parties under them. We shall thus see what were the elements, of which the complex idea expressed by the term Roman law consisted, and what it would be understood to embrace in the days of Cicero; just as we might analyse the English law, by separating it into its different branches of common law, equity, statute law, and the civil and canon law administered in our ecclesiastical courts. For this purpose it will be convenient to follow the order of division, which we find in the Institutes and Digest of Justinian1; and I shall endeavour to render the subject more familiar to our ideas, by illustrations and analogies drawn from our own law. The clear and interesting narrative given in the Digest, is taken from a work which no longer exists, called the Enchiridium of Pomponius. But we cannot, with implicit confidence, follow the Roman jurists as authorities on the subject of the early Roman law. To understand this aright, a correct knowledge of the ancient constitution of Rome was necessary; and we know that in this respect they were singularly deficient. The writers in the later times of the republic, had very inaccurate conceptions of the history of their country for the first few centuries; and Livy and Dionysius are constantly mis Inst. I. tit. i. Dig. I. ii. 2. The only ancient work in which we have any thing like a systematic account of the old Roman law, as it existed in the earlier times of the republic, is the Institutes of Gaius or Caius for the name is spelt either way, according as the Greek or Latin orthography is preferred. Gaius lived in the reigns of Hadrian and Antoninus Pius, between 117 and 161 A. D.; but we know nothing of his history, except that he was a profound jurist and wrote a great work, called Institutiones, upon the ancient Roman law. Fragments of this were preserved by being incorporated into the Digest or Pandects of Justinian; but the work itself was supposed until recently to be wholly lost. Maffei had indeed, at the beginning of the last century, discovered in the chapter library at Verona two pages of manuscript, containing a part of these Institutes; but it was not until 1816, that Niebuhr, during a two-days' residence at Verona, while on his way as Prussian ambassador to Rome, discovered nearly the whole work in a palimpsest, on which were written the letters of St. Jerome. Niebuhr was not at first aware of the value of the treasure he had found, not being able at the time to decypher more than satisfied him that it was the work of some old Roman jurist; but on communicating with Savigny, the latter hazarded a conjecture that it was the lost Institutes of Gaius; and this happily proved to be correct. CH. III.] MISTAKES OF ROMAN JURISTS. 63 taken when they attempt to explain usages and institutions, of the origin of which no trustworthy record had been preserved. Popular traditions, however improbable as well as untrue, were accepted as a plausible account of bygone events, though often based upon no better foundation than that fertile source of error, a false etymology. And the statements put forward by these historians, were generally adopted, without any critical examination of their probability or truth. Indeed, historical criticism did not then exist. It was reserved for our own æra to discover the extent to which they were misled, and Niebuhr in his immortal history, first lifted the veil that shrouds in such deep obscurity the first ages of the republic, and, out of the minute and fragmentary materials which time has spared, shadowed forth the lineaments of truth.' The earliest Roman laws of which any mention is made by Latin writers, were those contained in the Papirian code. These were such as were from time to time enacted in the times of the kings, which Sextus Papirius collected in a volume, and they thence received their name. But of these little or nothing is now known. The next in order are those of the Twelve Tables. They were compiled by the Decemvirs at the beginning of the fourth century of Rome, and consisted 1 Dion Cassius, who flourished at the end of the second and in the early part of the third century, had a far more accurate view of the early constitution of Rome than any of the Augustan writers. And yet he was not a Roman by birth, but a native of Nicæa in Bithynia. In speaking of Niebuhr as the author of the true theory of that constitution, it ought, in justice to the memory of Giambattista Vico, to be mentioned that he, in his Scienza di Nuovo, anticipated some of the discoveries of the German historian; especially the all-important difference between the populus and plebs. The same may be said of Perizonius, and, in a less degree, of Beaufort. of a revision of the then existing laws, and the new ones which had been imported from Greece by the three commissioners, who had been sent there, for the purpose of collecting notices of such laws and customs as might be useful to the Romans. In the adaptation of these they were assisted by an Ionian Greek, named Hermodorus of Ephesus. The new code, when completed, was engraved on twelve tablets of ivory or brass1, and set up publicly in front of the Rostra in the comitium, that the enactments might be seen and read by all the citizens. These were, in the strictest and most technical sense, leges, and may be considered as the early statute law of Rome. Cicero speaks of them in the most enthusiastic terms, and in the dialogue De Oratore makes Crassus, who there represents his own opinions, exclaim-"Let people clamour as they will, I shall say what I think. A single copy of the Twelve Tables seems to me to be more valuable and of more authority than the libraries of all the philosophers, for the purpose of investigating the sources and principles of law."2 At the same time certain forms of actions were framed, according to which legal rights and liabilities were to be determined, and these were called legis actiones. The 1 In the Digest we read, "quas in tabulas eboreas perscriptas pro rostris composuerunt;" but Dionysius, Hal. x. 57. says, σTÝλAIS XAλKAîS ÈYxapáEavтes ȧUTOús. There may, however, be no real discrepancy between these statements; for probably the Digest refers only to the public exposition of the ten tablets which were hung up in the comitium to invite public criticism, the laws not being yet considered complete. Afterwards two more were added, and very possibly when the code was thus-finally perfected, brazen tablets were used as being more durable. Livy, iii. 34. does not determine the question, as he simply uses the word tabulæ. 2 De Orat. 44. And again De Legg. ii. 23., “ Discebamus enim pueri xii., ut carmen necessarium, quas jam nemo discit." CH. III.] THE JUS FLAVIANUM. 65 knowledge of them, as well as the right of interpreting the Twelve Tables, was for nearly a century confined to the college of priests, (collegium pontificum,) as a privilege or prerogative of their order; and it was deemed a kind of mystery or craft not to be communicated to the people. But, according to the tradition received at Rome, it happened that Appius Claudius composed for the use of himself and his collegius, a treatise upon these various forms of legal procedure; and his secretary Cnæus Flavius, getting possession of the book, made it known to the public, so that thenceforth every man might make himself acquainted with the forms of action, necessary to be observed in the courts of law. This act of his was so popular, that he was elected in consequence tribune of the commons, and afterwards Curule Edile. The book which he had published, although he was not the author, was known by his name, and the legis actiones were thenceforth, by a kind of misnomer, called jus civile Flavianum. In process of time the want of additional forms of action was felt, and some new ones were in consequence framed by Sextus Ælius, who published them, and they thence derived the name of jus Ælianum. These legis actiones remind us of our original writs at common law, which issued out of Chancery, as the Officina chartarum. It is a maxim of the English law, that non potest quis sine brevi agere ;2 and formerly it was 2 "Posset agi lege, necne, pauci quondam sciebant. Fastos enim vulgo non habebant. Erant in magna potentia qui consulebantur: a quibus etiam dies, tanquam a Chaldæis petebantur." -Cic. pro Murena, ii. 2 Bracton, 413. b. If we were to construe the word brevi by "brief," Bracton's maxim would be true in a wider sense than he intended, as the "briefless " well know. |