Idea of the Roman Jurisprudence— The Laws of the Kings— The Twelve Tables of the Decemvirs— The Laws of the People. The Decrees of the Senate— The Edicts of the Magistrates and Emperors. Authority of the Civilians— Code , Pandects, Novels,and Institutes of Justinian: 1 Rights of Persons— 2 Rights of Things. 3 Private Injuries and Actions— 4 Crimes and Punishments
The civil or Roman law.
The vain titles of the victories of Justinian are crumbled
into dust; but the name of the legislator is inscribed on a
fair and everlasting monument. Under his reign, and by his
care, the civil jurisprudence was digested in the immortal
works of the CODE, the PANDECTS, and the INSTITUTES: (1) the
public reason of the Romans has been silently or studiously
transfused into the domestic institutions of Europe, (2), and
the laws of Justinian still command the respect or obedience
of independent nations. Wise or fortunate is the prince who
connects his own reputation with the honor or interest of a
perpetual order of men. The defence of their founder is the
first cause, which in every age has exercised the zeal and
industry of the civilians. They piously commemorate his
virtues; dissemble or deny his failings; and fiercely
chastise the guilt or folly of the rebels, who presume to
sully the majesty of the purple. The idolatry of love has
provoked, as it usually happens, the rancor of opposition;
the character of Justinian has been exposed to the blind
vehemence of flattery and invective; and the injustice of a
sect (the Anti-Tribonians,) has refused all praise and merit
to the prince, his ministers, and his laws. (3) Attached to
no party, interested only for the truth and candor of
history, and directed by the most temperate and skilful
guides, (4) I enter with just diffidence on the subject of
civil law, which has exhausted so many learned lives, and
clothed the walls of such spacious libraries. In a single,
if possible in a short, chapter, I shall trace the Roman
jurisprudence from Romulus to Justinian, (5) appreciate the
labors of that emperor, and pause to contemplate the
principles of a science so important to the peace and
happiness of society. The laws of a nation form the most
instructive portion of its history; and although I have
devoted myself to write the annals of a declining monarchy,
I shall embrace the occasion to breathe the pure and
invigorating air of the republic.
Laws of the kings of Rome.
The primitive government of Rome (6) was composed, with some political skill, of an elective king, a council of nobles,
and a general assembly of the people. War and religion were
administered by the supreme magistrate; and he alone
proposed the laws, which were debated in the senate, and
finally ratified or rejected by a majority of votes in the
thirty curiae or parishes of the city. Romulus, Numa, and
Servius Tullius, are celebrated as the most ancient
legislators; and each of them claims his peculiar part in
the threefold division of jurisprudence. (7) The laws of
marriage, the education of children, and the authority of
parents, which may seem to draw their origin from nature
itself, are ascribed to the untutored wisdom of Romulus. The
law of nations and of religious worship, which Numa
introduced, was derived from his nocturnal converse with the
nymph Egeria. The civil law is attributed to the experience
of Servius: he balanced the rights and fortunes of the seven
classes of citizens; and guarded, by fifty new regulations,
the observance of contracts and the punishment of crimes.
The state, which he had inclined towards a democracy, was
changed by the last Tarquin into a lawless despotism; and
when the kingly office was abolished, the patricians
engrossed the benefits of freedom. The royal laws became
odious or obsolete; the mysterious deposit was silently
preserved by the priests and nobles; and at the end of sixty
years, the citizens of Rome still complained that they were
ruled by the arbitrary sentence of the magistrates. Yet the
positive institutions of the kings had blended themselves
with the public and private manners of the city, some
fragments of that venerable jurisprudence (8) were compiled
by the diligence of antiquarians, (9) and above twenty texts
still speak the rudeness of the Pelasgic idiom of the
Latins. (10)
The twelve tables of the Decemvirs.
I shall not repeat the well-known story of the Decemvirs, (11) who sullied by their actions the honor of inscribing on brass, or wood, or ivory, the TWELVE TABLES of the Roman
laws. (12) They were dictated by the rigid and jealous spirit of an aristocracy, which had yielded with reluctance to the just demands of the people. But the substance of the Twelve
Tables was adapted to the state of the city; and the Romans had emerged from Barbarism, since they were capable of studying and embracing the institutions of their more enlightened neighbors. A wise Ephesian was driven by envy from his native country: before he could reach the shores of Latium, he had observed the various forms of human nature
and civil society: he imparted his knowledge to the legislators of Rome, and a statue was erected in the forum to the perpetual memory of Hermodorus. (13) The names and divisions of the copper money, the sole coin of the infant state, were of Dorian origin: (14) the harvests of Campania
and Sicily relieved the wants of a people whose agriculture was often interrupted by war and faction; and since the trade was established, (15) the deputies who sailed from the Tyber might return from the same harbors with a more precious cargo of political wisdom. The colonies of Great Greece had transported and improved the arts of their mother country. Cumae and Rhegium, Crotona and Tarentum, Agrigentum and Syracuse, were in the rank of the most flourishing
cities. The disciples of Pythagoras applied philosophy to
the use of government; the unwritten laws of Charondas
accepted the aid of poetry and music, (16) and Zaleucus
framed the republic of the Locrians, which stood without
alteration above two hundred years. (17) From a similar
motive of national pride, both Livy and Dionysius are
willing to believe, that the deputies of Rome visited Athens
under the wise and splendid administration of Pericles; and
the laws of Solon were transfused into the twelve tables.
If such an embassy had indeed been received from the
Barbarians of Hesperia, the Roman name would have been
familiar to the Greeks before the reign of Alexander; (18)
and the faintest evidence would have been explored and
celebrated by the curiosity of succeeding times. But the
Athenian monuments are silent; nor will it seem credible
that the patricians should undertake a long and perilous
navigation to copy the purest model of democracy. In the
comparison of the tables of Solon with those of the
Decemvirs, some casual resemblance may be found; some rules
which nature and reason have revealed to every society; some
proofs of a common descent from Egypt or Phoenicia. (19) But in all the great lines of public and private jurisprudence,
the legislators of Rome and Athens appear to be strangers or
adverse at each other.
Their character and influence.
Whatever might be the origin or the merit of the twelve
tables, (20) they obtained among the Romans that blind and
partial reverence which the lawyers of every country delight
to bestow on their municipal institutions. The study is
recommended by Cicero (21) as equally pleasant and instructive.
"They amuse the mind by the remembrance of old words and the portrait of ancient manners; they inculcate the soundest principles of government and morals; and I am not afraid to affirm, that the brief composition of the Decemvirs surpasses in genuine value the libraries of Grecian philosophy. How admirable," says Tully, with honest or affected prejudice, "is the wisdom of our ancestors! We alone are the masters of civil prudence, and our superiority is the more conspicuous, if we deign to cast our eyes on the rude and almost ridiculous jurisprudence of Draco, of Solon, and of Lycurgus."
The twelve tables were committed to the memory of the young and the meditation of the old; they were transcribed and illustrated with learned diligence; they had escaped the flames of the Gauls, they subsisted in the age of Justinian, and their subsequent loss has been imperfectly restored by the labors of modern critics. (22) But although these venerable monuments were considered as the rule of right and the fountain of justice, (23) they were overwhelmed by the weight and variety of new laws, which, at the end of five centuries, became a grievance more intolerable than the vices of the city. (24) Three thousand brass plates, the acts of the senate of the people, were deposited in the Capitol: (25) and some of the acts, as the Julian law against extortion, surpassed the number of a hundred chapters. (26) The Decemvirs had neglected to import the sanction of Zaleucus, which so long maintained the integrity of his republic. A Locrian, who proposed any new law, stood forth in the assembly of the people with a cord round his neck, and if the law was rejected, the innovator was instantly strangled.
Laws of the people.
The Decemvirs had been named, and their tables were
approved, by an assembly of the centuries, in which riches
preponderated against numbers. To the first class of
Romans, the proprietors of one hundred thousand pounds of
copper, (27) ninety-eight votes were assigned, and only
ninety-five were left for the six inferior classes,
distributed according to their substance by the artful
policy of Servius. But the tribunes soon established a more
specious and popular maxim, that every citizen has an equal
right to enact the laws which he is bound to obey. Instead
of the centuries, they convened the tribes; and the
patricians, after an impotent struggle, submitted to the
decrees of an assembly, in which their votes were confounded
with those of the meanest plebeians. Yet as long as the
tribes successively passed over narrow bridges (28) and gave their voices aloud, the conduct of each citizen was exposed
to the eyes and ears of his friends and countrymen. The
insolvent debtor consulted the wishes of his creditor; the
client would have blushed to oppose the views of his patron;
the general was followed by his veterans, and the aspect of
a grave magistrate was a living lesson to the multitude. A
new method of secret ballot abolished the influence of fear
and shame, of honor and interest, and the abuse of freedom
accelerated the progress of anarchy and despotism. (29) The
Romans had aspired to be equal; they were levelled by the
equality of servitude; and the dictates of Augustus were
patiently ratified by the formal consent of the tribes or
centuries. Once, and once only, he experienced a sincere and
strenuous opposition. His subjects had resigned all
political liberty; they defended the freedom of domestic
life. A law which enforced the obligation, and strengthened
the bonds of marriage, was clamorously rejected; Propertius,
in the arms of Delia, applauded the victory of licentious
love; and the project of reform was suspended till a new and
more tractable generation had arisen in the world. (30) Such
an example was not necessary to instruct a prudent usurper
of the mischief of popular assemblies; and their abolition,
which Augustus had silently prepared, was accomplished
without resistance, and almost without notice, on the
accession of his successor. (31) Sixty thousand plebeian
legislators, whom numbers made formidable, and poverty
secure, were supplanted by six hundred senators, who held
their honors, their fortunes, and their lives, by the
clemency of the emperor. Decrees of the senate. The loss of executive power was alleviated by the gift of legislative authority; and Ulpian
might assert, after the practice of two hundred years, that
the decrees of the senate obtained the force and validity of
laws. In the times of freedom, the resolves of the people
had often been dictated by the passion or error of the
moment: the Cornelian, Pompeian, and Julian laws were
adapted by a single hand to the prevailing disorders; but
the senate, under the reign of the Caesars, was composed of
magistrates and lawyers, and in questions of private
jurisprudence, the integrity of their judgment was seldom
perverted by fear or interest. (32)
Edicts of the praetors.
The silence or ambiguity of the laws was supplied by the
occasional edicts of those magistrates who were invested with the honors of the state. (33) This ancient prerogative
of the Roman kings was transferred, in their respective
offices, to the consuls and dictators, the censors and
praetors; and a similar right was assumed by the tribunes of
the people, the ediles, and the proconsuls. At Rome, and in
the provinces, the duties of the subject, and the intentions
of the governor, were proclaimed; and the civil
jurisprudence was reformed by the annual edicts of the
supreme judge, the praetor of the city. As soon as he ascended his tribunal, he announced by the voice of the
crier, and afterwards inscribed on a white wall, the rules
which he proposed to follow in the decision of doubtful
cases, and the relief which his equity would afford from the
precise rigor of ancient statutes. A principle of
discretion more congenial to monarchy was introduced into
the republic: the art of respecting the name, and eluding
the efficacy, of the laws, was improved by successive
praetors; subtleties and fictions were invented to defeat
the plainest meaning of the Decemvirs, and where the end was
salutary, the means were frequently absurd. The secret or
probable wish of the dead was suffered to prevail over the
order of succession and the forms of testaments; and the
claimant, who was excluded from the character of heir,
accepted with equal pleasure from an indulgent praetor the
possession of the goods of his late kinsman or benefactor.
In the redress of private wrongs, compensations and fines
were substituted to the obsolete rigor of the Twelve Tables;
time and space were annihilated by fanciful suppositions;
and the plea of youth, or fraud, or violence, annulled the
obligation, or excused the performance, of an inconvenient
contract. A jurisdiction thus vague and arbitrary was
exposed to the most dangerous abuse: the substance, as well
as the form, of justice were often sacrificed to the
prejudices of virtue, the bias of laudable affection, and
the grosser seductions of interest or resentment. But the
errors or vices of each praetor expired with his annual
office; such maxims alone as had been approved by reason and practice were copied by succeeding judges; the rule of
proceeding was defined by the solution of new cases; and the temptations of injustice were removed by the Cornelian law,
which compelled the praetor of the year to adhere to the spirit and letter of his first proclamation. (34) It was reserved for the curiosity and learning of Adrian, to accomplish the design which had been conceived by the genius of Caesar; and the praetorship of Salvius Julian, an eminent lawyer, was immortalized by the composition of the PERPETUAL EDICT. This well-digested code was ratified by the emperor and the senate; the long divorce of law and equity was at
length reconciled; and, instead of the Twelve Tables, the Perpetual Edict was fixed as the invariable standard of civil jurisprudence. (35)
Constitutions of the emperors.
From Augustus to Trajan, the modest Caesars were content to
promulgate their edicts in the various characters of a Roman
magistrate; and, in the decrees of the senate, the epistles and orations of the prince were respectfully
inserted. Adrian (36) appears to have been the first who
assumed, without disguise, the plenitude of legislative
power. And this innovation, so agreeable to his active
mind, was countenanced by the patience of the times, and his
long absence from the seat of government. The same policy
was embraced by succeeding monarchs, and, according to the
harsh metaphor of Tertullian, "the gloomy and intricate
forest of ancient laws was cleared away by the axe of royal
mandates and constitutions." (37) During four centuries, from
Adrian to Justinian the public and private jurisprudence was
moulded by the will of the sovereign; and few institutions,
either human or divine, were permitted to stand on their
former basis. The origin of Imperial legislation was
concealed by the darkness of ages and the terrors of armed
despotism; and a double tiction was propagated by the
servility, or perhaps the ignorance, of the civilians, who
basked in the sunshine of the Roman and Byzantine courts. 1.
To the prayer of the ancient Caesars, the people or the
senate had sometimes granted a personal exemption from the
obligation and penalty of particular statutes; and each
indulgence was an act of jurisdiction exercised by the
republic over the first of her citizens. His humble
privilege was at length transformed into the prerogative of
a tyrant; and the Latin expression of "released from the
laws" (38) was supposed to exalt the emperor above all human restraints, and to leave his conscience and reason as the sacred measure of his conduct. 2. A similar dependence was implied in the decrees of the senate, which, in every reign, defined the titles and powers of an elective magistrate.
But it was not before the ideas, and even the language, of
the Romans had been corrupted, that a royal law, (39) and an
irrevocable gift of the people, were created by the fancy of
Ulpian, or more probably of Tribonian himself; (40) and the
origin of Imperial power, though false in fact, and slavish
in its consequence, Their legislative power. was supported on a principle of freedom
and justice.
"The pleasure of the emperor has the vigour and effect of law, since the Roman people, by the royal law, have transferred to their prince the full extent of their own power and sovereignty." (41)
The will of a single man, of a child perhaps, was allowed to prevail over the wisdom of ages and the inclinations of millions; and the degenerate Greeks were proud to declare, that in his hands alone the arbitrary exercise of legislation could be safely deposited.
"What interest or passion," exclaims Theophilus in the court of Justinian, "can reach the calm and sublime elevation of the monarch? He is already master of the lives and fortunes of his subjects; and those who have incurred his displeasure are already numbered with the dead." (42)
Disdaining the language of flattery, the historian may confess, that in questions of private jurisprudence, the absolute sovereign of a great empire can seldom be influenced by any personal considerations. Virtue, or even reason, will suggest to his impartial mind, that he is the guardian of peace and equity, and that the interest of society is inseparably connected with his own. Under the weakest and most vicious reign, the seat of justice was filled by the wisdom and integrity of Papinian and Ulpian; (43) and the purest materials of the Code and Pandects are inscribed with the names of Caracalla and his ministers. (44) The tyrant of Rome was sometimes the benefactor of the provinces. A dagger terminated the crimes of Domitian; but the prudence of Nerva confirmed his acts, which, in the joy of their deliverance, had been rescinded by an indignant senate. (45) Their rescripts Yet in the rescripts, (46) replies to the consultations of the magistrates, the wisest of princes might be deceived by a partial exposition of the case. And this abuse, which placed their hasty decisions on the same level with mature and deliberate acts of legislation, was ineffectually condemned by the sense and example of Trajan. The rescripts of the emperor, his grants and decrees, his edicts and pragmatic sanctions, were subscribed in purple ink, (47) and transmitted to the provinces as general or special laws, which the magistrates were bound to execute, and the people to obey. But as their number continually multiplied, the rule of obedience became each day more doubtful and obscure, till the will of the sovereign was fixed and ascertained in the Gregorian, the Hermogenian, and the Theodosian codes. The two first, of which some fragments have escaped, were framed by two private lawyers, to preserve the constitutions of the Pagan emperors from Adrian to Constantine. The third, which is still extant, was digested in sixteen books by the order of the younger Theodosius to consecrate the laws of the Christian princes from Constantine to his own reign. But the three codes obtained an equal authority in the tribunals; and any act which was not included in the sacred deposit might be disregarded by the judge as epurious or obsolete. (48)
Forms of the Roman law.
Among savage nations, the want of letters is imperfectly
supplied by the use of visible signs, which awaken
attention, and perpetuate the remembrance of any public or
private transaction. The jurisprudence of the first Romans
exhibited the scenes of a pantomime; the words were adapted
to the gestures, and the slightest error or neglect in the
forms of proceeding was sufficient to annul the substance of
the fairest claim. The communion of the marriage- life was
denoted by the necessary elements of fire and water; (49) and the divorced wife resigned the bunch of keys, by the
delivery of which she had been invested with the government
of the family. The manumission of a son, or a slave, was
performed by turning him round with a gentle blow on the
cheek; a work was prohibited by the casting of a stone;
prescription was interrupted by the breaking of a branch;
the clinched fist was the symbol of a pledge or deposit; the
right hand was the gift of faith and confidence. The
indenture of covenants was a broken straw; weights and
scales were introduced into every payment, and the heir who
accepted a testament was sometimes obliged to snap his
fingers, to cast away his garments, and to leap or dance
with real or affected transport. (50) If a citizen pursued
any stolen goods into a neighbor's house, he concealed his
nakedness with a linen towel, and hid his face with a mask
or basin, lest he should encounter the eyes of a virgin or a
matron. (51) In a civil action the plaintiff touched the ear
of his witness, seized his reluctant adversary by the neck,
and implored, in solemn lamentation, the aid of his
fellow-citizens. The two competitors grasped each other's
hand as if they stood prepared for combat before the
tribunal of the praetor; he commanded them to produce the
object of the dispute; they went, they returned with
measured steps, and a clod of earth was cast at his feet to
represent the field for which they contended. This occult
science of the words and actions of law was the inheritance
of the pontiffs and patricians. Like the Chaldean
astrologers, they announced to their clients the days of
business and repose; these important trifles were interwoven
with the religion of Numa; and after the publication of the
Twelve Tables, the Roman people was still enslaved by the
ignorance of judicial proceedings. The treachery of some
plebeian officers at length revealed the profitable mystery:
in a more enlightened age, the legal actions were derided
and observed; and the same antiquity which sanctified the
practice, obliterated the use and meaning of this primitive
language. (52)
Succession of the civil lawyers.
A more liberal art was cultivated, however, by the sage of
Rome, who, in a stricter sense, may be considered as the
authors of the civil law. The alteration of the idiom and
manners of the Romans rendered the style of the Twelve
Tables less familiar to each rising generation, and the
doubtful passages were imperfectly explained by the study of
legal antiquarians. To define the ambiguities, to
circumscribe the latitude, to apply the principles, to
extend the consequences, to reconcile the real or apparent
contradictions, was a much nobler and more important task;
and the province of legislation was silently invaded by the
expounders of ancient statutes. Their subtle interpretations
concurred with the equity of the praetor, to reform the
tyranny of the darker ages: however strange or intricate the
means, it was the aim of artificial jurisprudence to restore
the simple dictates of nature and reason, and the skill of
private citizens was usefully employed to undermine the
public institutions of their country. The revolution of
almost one thousand years, from the Twelve Tables to the
reign of Justinian, may be divided into three periods,
almost equal in duration, and distinguished from each other
by the mode of instruction and the character of the
civilians. (53)The first period, A.U.C. 303-648. Pride and ignorance contributed, during the first period, to confine within narrow limits the science of the Roman law. On the public days of market or assembly, the masters of the art were seen walking in the forum ready to
impart the needful advice to the meanest of their
fellow-citizens, from whose votes, on a future occasion,
they might solicit a grateful return. As their years and
honors increased, they seated themselves at home on a chair
or throne, to expect with patient gravity the visits of
their clients, who at the dawn of day, from the town and
country, began to thunder at their door. The duties of
social life, and the incidents of judicial proceeding, were
the ordinary subject of these consultations, and the verbal
or written opinion of the jurisconsults was framed
according to the rules of prudence and law. The youths of
their own order and family were permitted to listen; their
children enjoyed the benefit of more private lessons, and
the Mucian race was long renowned for the hereditary
knowledge of the civil law. Second period, A.U.C. 648-988 The second period, the learned and splendid age of jurisprudence, may be extended from the birth of Cicero to the reign of Severus Alexander. A system was formed, schools were instituted, books were composed, and both the living and the dead became subservient to the instruction of the student. The tripartite of Aelius Paetus, surnamed Catus, or the Cunning, was preserved as the oldest work of Jurisprudence. Cato the censor derived some additional fame from his legal studies, and those of his son: the kindred appellation of Mucius Scaevola was illustrated by three sages of the law; but the perfection of the science was ascribed to Servius Sulpicius, their disciple, and the friend of Tully; and the long succession,
which shone with equal lustre under the republic and under the Caesars, is finally closed by the respectable characters of Papinian, of Paul, and of Ulpian. Their names, and the various titles of their productions, have been minutely preserved, and the example of Labeo may suggest some idea of their diligence and fecundity. That eminent lawyer of the Augustan age divided the year between the city and country, between business and composition; and four hundred books are enumerated as the fruit of his retirement. Of the collection of his rival Capito, the two hundred and fifty-ninth book is expressly quoted; and few teachers could deliver their opinions in less than a century of volumes. Third period, A.U.C. 988-1230. In the third period, between the reigns of Alexander and Justinian, the oracles of jurisprudence were almost mute. The measure of curiosity had been filled: the throne was occupied by tyrants and Barbarians, the active spirits were diverted by religious disputes, and the professors of Rome, Constantinople, and Berytus, were humbly content to repeat the lessons of their more enlightened predecessors. From the slow advances and rapid decay of these legal studies, it may be inferred, that they require a state of peace and refinement. From the multitude of voluminous civilians who fill the intermediate space, it is evident that such studies may be pursued, and such works may be performed, with a common share of judgment, experience, and industry. The genius of Cicero and Virgil was more sensibly felt, as each
revolving age had been found incapable of producing a similar or a second: but the most eminent teachers of the law were assured of leaving disciples equal or superior to themselves in merit and reputation.
Their philosophy.
The jurisprudence which had been grossly adapted to the
wants of the first Romans, was polished and improved in the
seventh century of the city, by the alliance of Grecian
philosophy. The Scaevolas had been taught by use and
experience; but Servius Sulpicius was the first civilian who established his art on a certain and general theory. (54)
For the discernment of truth and falsehood he applied, as an
infallible rule, the logic of Aristotle and the stoics,
reduced particular cases to general principles, and diffused
over the shapeless mass the light of order and eloquence.
Cicero, his contemporary and friend, declined the reputation
of a professed lawyer; but the jurisprudence of his country
was adorned by his incomparable genius, which converts into
gold every object that it touches. After the example of
Plato, he composed a republic; and, for the use of his
republic, a treatise of laws; in which he labors to deduce
from a celestial origin the wisdom and justice of the Roman
constitution. The whole universe, according to his sublime
hypothesis, forms one immense commonwealth: gods and men,
who participate of the same essence, are members of the same
community; reason prescribes the law of nature and nations;
and all positive institutions, however modified by accident
or custom, are drawn from the rule of right, which the Deity
has inscribed on every virtuous mind. From these
philosophical mysteries, he mildly excludes the sceptics who
refuse to believe, and the epicureans who are unwilling to
act. The latter disdain the care of the republic: he
advises them to slumber in their shady gardens. But he
humbly entreats that the new academy would be silent, since
her bold objections would too soon destroy the fair and well
ordered structure of his lofty system. (55) Plato, Aristotle,
and Zeno, he represents as the only teachers who arm and
instruct a citizen for the duties of social life. Of these,
the armor of the stoics (56) was found to be of the firmest
temper; and it was chiefly worn, both for use and ornament,
in the schools of jurisprudence. From the portico, the
Roman civilians learned to live, to reason, and to die: but
they imbibed in some degree the prejudices of the sect; the
love of paradox, the pertinacious habits of dispute, and a
minute attachment to words and verbal distinctions. The
superiority of form to matter was introduced to ascertain
the right of property: and the equality of crimes is
countenanced by an opinion of Trebatius, (57) that he who
touches the ear, touches the whole body; and that he who
steals from a heap of corn, or a hogshead of wine, is guilty
of the entire theft. (58)
Sects.
The most absolute mandate could only require that the judges
should agree with the civilians, if the civilians agreed
among themselves. But positive institutions are often the
result of custom and prejudice; laws and language are
ambiguous and arbitrary; where reason is incapable of
pronouncing, the love of argument is inflamed by the envy of
rivals, the vanity of masters, the blind attachment of their
disciples; and the Roman jurisprudence was divided by the
once famous sects of the Proculians and Sabinians. (62) Two
sages of the law, Ateius Capito and Antistius Labeo, (63)
adorned the peace of the Augustan age; the former
distinguished by the favor of his sovereign; the latter more
illustrious by his contempt of that favor, and his stern
though harmless opposition to the tyrant of Rome. Their
legal studies were influenced by the various colors of their
temper and principles. Labeo was attached to the form of the
old republic; his rival embraced the more profitable
substance of the rising monarchy. But the disposition of a
courtier is tame and submissive; and Capito seldom presumed
to deviate from the sentiments, or at least from the words,
of his predecessors; while the bold republican pursued his
independent ideas without fear of paradox or innovations.
The freedom of Labeo was enslaved, however, by the rigor of
his own conclusions, and he decided, according to the letter
of the law, the same questions which his indulgent
competitor resolved with a latitude of equity more suitable
to the common sense and feelings of mankind. If a fair
exchange had been substituted to the payment of money,
Capito still considered the transaction as a legal sale; (64)
and he consulted nature for the age of puberty, without
confining his definition to the precise period of twelve or
fourteen years. (65) This opposition of sentiments was
propagated in the writings and lessons of the two founders;
the schools of Capito and Labeo maintained their inveterate
conflict from the age of Augustus to that of Adrian; (66) and
the two sects derived their appellations from Sabinus and
Proculus, their most celebrated teachers. The names of
Cassians and Pegasians were likewise applied to the same
parties; but, by a strange reverse, the popular cause was in
the hands of Pegasus, (67) a timid slave of Domitian, while
the favorite of the Caesars was represented by Cassius, (68)
who gloried in his descent from the patriot assassin. By
the perpetual edict, the controversies of the sects were in
a great measure determined. For that important work, the
emperor Adrian preferred the chief of the Sabinians: the
friends of monarchy prevailed; but the moderation of Salvius
Julian insensibly reconciled the victors and the vanquished.
Like the contemporary philosophers, the lawyers of the age
of the Antonines disclaimed the authority of a master, and
adopted from every system the most probable doctrines. (69)
But their writings would have been less voluminous, had
their choice been more unanimous. The conscience of the
judge was perplexed by the number and weight of discordant
testimonies, and every sentence that his passion or interest
might pronounce was justified by the sanction of some
venerable name. An indulgent edict of the younger
Theodosius excused him from the labor of comparing and
weighing their arguments. Five civilians, Caius, Papinian,
Paul, Ulpian, and Modestinus, were established as the
oracles of jurisprudence: a majority was decisive: but if
their opinions were equally divided, a casting vote was
ascribed to the superior wisdom of Papinian. (70)
Reformation of the Roman law by Justinian, A.D. 527, etc.
When Justinian ascended the throne, the reformation of the
Roman jurisprudence was an arduous but indispensable task.
In the space of ten centuries, the infinite variety of laws
and legal opinions had filled many thousand volumes, which
no fortune could purchase and no capacity could digest.
Books could not easily be found; and the judges, poor in the
midst of riches, were reduced to the exercise of their
illiterate discretion. The subjects of the Greek provinces
were ignorant of the language that disposed of their lives
and properties; and the barbarous dialect of the Latins was
imperfectly studied in the academies of Berytus and
Constantinople. As an Illyrian soldier, that idiom was
familiar to the infancy of Justinian; his youth had been
instructed by the lessons of jurisprudence, and his Imperial
choice selected the most learned civilians of the East, to
labor with their sovereign in the work of reformation. (71)
The theory of professors was assisted by the practice of
advocates, and the experience of magistrates; Tribonian, A.D. 527-546. and the whole
undertaking was animated by the spirit of Tribonian. (72) This extraordinary man, the object of so much praise and censure, was a native of Side in Pamphylia; and his genius, like that of Bacon, embraced, as his own, all the business and knowledge of the age. Tribonian composed, both in prose and verse, on a strange diversity of curious and abstruse subjects: (73) a double panegyric of Justinian and the life of the philosopher Theodotus; the nature of happiness and the duties of government; Homer's catalogue and the four-and-twenty sorts of metre; the astronomical canon of Ptolemy; the changes of the months; the houses of the
planets; and the harmonic system of the world. To the literature of Greece he added the use of the Latin tonque; the Roman civilians were deposited in his library and in his mind; and he most assiduously cultivated those arts which
opened the road of wealth and preferment. From the bar of
the Praetorian praefects, he raised himself to the honors of
quaestor, of consul, and of master of the offices: the
council of Justinian listened to his eloquence and wisdom;
and envy was mitigated by the gentleness and affability of
his manners. The reproaches of impiety and avarice have
stained the virtue or the reputation of Tribonian. In a
bigoted and persecuting court, the principal minister was
accused of a secret aversion to the Christian faith, and was
supposed to entertain the sentiments of an Atheist and a
Pagan, which have been imputed, inconsistently enough, to
the last philosophers of Greece. His avarice was more
clearly proved and more sensibly felt. If he were swayed by
gifts in the administration of justice, the example of Bacon
will again occur; nor can the merit of Tribonian atone for
his baseness, if he degraded the sanctity of his profession;
and if laws were every day enacted, modified, or repealed,
for the base consideration of his private emolument. In the
sedition of Constantinople, his removal was granted to the
clamors, perhaps to the just indignation, of the people: but
the quaestor was speedily restored, and, till the hour of
his death, he possessed, above twenty years, the favor and
confidence of the emperor. His passive and dutiful
submission had been honored with the praise of Justinian
himself, whose vanity was incapable of discerning how often
that submission degenerated into the grossest adulation.
Tribonian adored the virtues of his gracious of his gracious
master; the earth was unworthy of such a prince; and he
affected a pious fear, that Justinian, like Elijah or
Romulus, would be snatched into the air, and translated
alive to the mansions of celestial glory. (74)
The code of Justinian, A.D. 528,February 13; A.D.529, April 7.
If Caesar had achieved the reformation of the Roman law, his
creative genius, enlightened by reflection and study, would
have given to the world a pure and original system of
jurisprudence. Whatever flattery might suggest, the emperor
of the East was afraid to establish his private judgment as
the standard of equity: in the possession of legislative
power, he borrowed the aid of time and opinion; and his
laborious compilations are guarded by the sages and
legislature of past times. Instead of a statue cast in a
simple mould by the hand of an artist, the works of
Justinian represent a tessellated pavement of antique and
costly, but too often of incoherent, fragments. In the
first year of his reign, he directed the faithful Tribonian,
and nine learned associates, to revise the ordinances of his
predecessors, as they were contained, since the time of
Adrian, in the Gregorian Hermogenian, and Theodosian codes;
to purge the errors and contradictions, to retrench whatever
was obsolete or superfluous, and to select the wise and
salutary laws best adapted to the practice of the tribunals
and the use of his subjects. The work was accomplished in
fourteen months; and the twelve books or tables, which the
new decemvirs produced, might be designed to imitate the
labors of their Roman predecessors. The new CODE of
Justinian was honored with his name, and confirmed by his
royal signature: authentic transcripts were multiplied by
the pens of notaries and scribes; they were transmitted to
the magistrates of the European, the Asiatic, and afterwards
the African provinces; and the law of the empire was
proclaimed on solemn festivals at the doors of churches. The Pandects, or Digest, A.D. 530, Dec 15; A.D. 533, Dec. 16. A more arduous operation was still behind — to extract the spirit of jurisprudence from the decisions and conjectures,
the questions and disputes, of the Roman civilians. Seventeen lawyers, with Tribonian at their head, were appointed by the emperor to exercise an absolute
jurisdiction over the works of their predecessors. If they had obeyed his commands in ten years, Justinian would have been satisfied with their diligence; and the rapid composition of the DIGEST or PANDECTS, (75) in three years, will deserve praise or censure, according to the merit of the execution. From the library of Tribonian, they chose forty, the most eminent civilians of former times: (76) two thousand treatises were comprised in an abridgment of fifty books; and it has been carefully recorded, that three millions of lines or sentences, (77) were reduced, in this abstract, to the moderate number of one hundred and fifty thousand. The edition of this great work was delayed a month after that of the INSTITUTES; and it seemed reasonable that the elements should precede the digest of the Roman law. As soon as the emperor had approved their labors, he ratified, by his legislative power, the speculations of these private citizens: their commentaries, on the twelve tables, the perpetual edict, the laws of the people, and the decrees of the senate, succeeded to the authority of the text; and the text was abandoned, as a useless, though venerable, relic of antiquity. The Code, the Pandects, and the Institutes, were declared to be the legitimate system of civil jurisprudence; they alone were admitted into the tribunals, and they alone were taught in the academies of Rome, Constantinople, and Berytus. Justinian addressed to the senate and provinces his eternal oracles; and his pride, under the mask of piety, ascribed the consummation of this great design to the support and inspiration of the Deity.
Praise and censure of the Code and Pandects.
Since the emperor declined the fame and envy of original
composition, we can only require, at his hands, method
choice, and fidelity, the humble, though indispensable,
virtues of a compiler. Among the various combinations of
ideas, it is difficult to assign any reasonable preference;
but as the order of Justinian is different in his three
works, it is possible that all may be wrong; and it is
certain that two cannot be right. In the selection of
ancient laws, he seems to have viewed his predecessors
without jealousy, and with equal regard: the series could
not ascend above the reign of Adrian, and the narrow
distinction of Paganism and Christianity, introduced by the
superstition of Theodosius, had been abolished by the
consent of mankind. But the jurisprudence of the Pandects is
circumscribed within a period of a hundred years, from the
perpetual edict to the death of Severus Alexander: the
civilians who lived under the first Caesars are seldom
permitted to speak, and only three names can be attributed
to the age of the republic. The favorite of Justinian (it
has been fiercely urged) was fearful of encountering the
light of freedom and the gravity of Roman sages. Tribonian
condemned to oblivion the genuine and native wisdom of Cato,
the Scaevolas, and Sulpicius; while he invoked spirits more
congenial to his own, the Syrians, Greeks, and Africans, who
flocked to the Imperial court to study Latin as a foreign
tongue, and jurisprudence as a lucrative profession. But
the ministers of Justinian, (78) were instructed to labor,
not for the curiosity of antiquarians, but for the immediate
benefit of his subjects. It was their duty to select the
useful and practical parts of the Roman law; and the writings of the old republicans, however curious on excellent, were no longer suited to the new system of manners, religion, and government. Perhaps, if the preceptors and friends of Cicero were still alive, our candor would acknowledge, that, except in purity of language, (79) their intrinsic merit was excelled by the school of Papinian and Ulpian. The science of the laws is the slow growth of time and experience, and the advantage both of method and materials, is naturally assumed by the most recent authors. The civilians of the reign of the Antonines had studied the works of their predecessors: their philosophic spirit had mitigated the rigor of antiquity, simplified the forms of proceeding, and emerged from the jealousy and prejudice of the rival sects. The choice of the authorities that compose the Pandects depended on the judgment of Tribonian: but the power of his sovereign could not absolve him from the sacred obligations of truth and fidelity. As the legislator of the empire, Justinian might repeal the acts of the Antonines, or condemn, as seditious, the free principles, which were maintained by the last of the Roman lawyers. (80) But the existence of past facts is placed beyond the reach of despotism; and the emperor was guilty of fraud and forgery, when he corrupted the integrity of their text, inscribed with their venerable names the words and ideas of his servile reign, (81) and suppressed, by the hand of power, the pure and authentic copies of their sentiments. The changes and interpolations of Tribonian and his colleagues are excused by the pretence of uniformity: but their cares have been insufficient, and the antinomies, or contradictions of the Code and Pandects, still exercise the patience and subtilty of modern civilians. (82)
Loss of the ancient jurisprudence.
A rumor devoid of evidence has been propagated by the enemies of Justinian; that the jurisprudence of ancient Rome was reduced to ashes by the author of the Pandects, from the vain persuasion, that it was now either false or superfluous. Without usurping an office so invidious, the emperor might safely commit to ignorance and time the accomplishments of this destructive wish. Before the
invention of printing and paper, the labor and the materials
of writing could be purchased only by the rich; and it may
reasonably be computed, that the price of books was a
hundred fold their present value. (83) Copies were slowly
multiplied and cautiously renewed: the hopes of profit
tempted the sacrilegious scribes to erase the characters of
antiquity, and Sophocles or Tacitus were obliged to
resign the parchment to missals, homilies, and the golden
legend. (84) If such was the fate of the most beautiful
compositions of genius, what stability could be expected for
the dull and barren works of an obsolete science? The books
of jurisprudence were interesting to few, and entertaining
to none: their value was connected with present use, and
they sunk forever as soon as that use was superseded by the
innovations of fashion, superior merit, or public authority.
In the age of peace and learning, between Cicero and the
last of the Antonines, many losses had been already
sustained, and some luminaries of the school, or forum, were
known only to the curious by tradition and report. Three
hundred and sixty years of disorder and decay accelerated
the progress of oblivion; and it may fairly be presumed,
that of the writings, which Justinian is accused of
neglecting, many were no longer to be found in the libraries
of the East. (85) The copies of Papinian, or Ulpian, which
the reformer had proscribed, were deemed unworthy of future
notice: the Twelve Tables and praetorian edicts insensibly
vanished, and the monuments of ancient Rome were neglected
or destroyed by the envy and ignorance of the Greeks. Even
the Pandects themselves have escaped with difficulty and
danger from the common shipwreck, and criticism has
pronounced that all the editions and manuscripts of the West
are derived from one original. (86) It was transcribed at
Constantinople in the beginning of the seventh century, (87)
was successively transported by the accidents of war and
commerce to Amalphi, (88) Pisa, (89) and Florence, (90) and is
now deposited as a sacred relic (91) in the ancient palace of the republic. (92)
Legal inconstancy of Justinian.
It is the first care of a reformer to prevent any future
reformation. To maintain the text of the Pandects, the
Institutes, and the Code, the use of ciphers and
abbreviations was rigorously proscribed; and as Justinian
recollected, that the perpetual edict had been buried under
the weight of commentators, he denounced the punishment of
forgery against the rash civilians who should presume to
interpret or pervert the will of their sovereign. The
scholars of Accursius, of Bartolus, of Cujacius, should
blush for their accumulated guilt, unless they dare to
dispute his right of binding the authority of his
successors, and the native freedom of the mind. But the
emperor was unable to fix his own inconstancy; and, while he
boasted of renewing the exchange of Diomede, of transmuting
brass into gold, (93) discovered the necessity of purifying
his gold from the mixture of baser alloy. Six years had not
elapsed from the publication of the Code, before he
condemned the imperfect attempt, Second edition of the Code, A.D. 534, Nov 16. by a new and more accurate edition of the same work; which he enriched with two hundred
of his own laws, and fifty decisions of the darkest and most intricate points of jurisprudence. Every year, or, according to Procopius, each day, of his long reign, was marked by some legal innovation. Many of his acts were
rescinded by himself; many were rejected by his successors; many have been obliterated by time; but the number of sixteen EDICTS, and one hundred and The Novels, A.D. 534-565. sixty-eight NOVELS, (94) has been admitted into the authentic body of the civil jurisprudence. In the opinion of a philosopher superior to the prejudices of his profession, these incessant, and, for the most part, trifling alterations, can be only explained by the venal spirit of a prince, who sold without shame his judgments and his laws. (95) The charge of the secret historian is indeed explicit and vehement; but the sole instance, which he produces, may be ascribed to the devotion as well as to the avarice of Justinian. A wealthy bigot had bequeathed his inheritance to the church of Emesa; and its value was enhanced by the dexterity of an artist, who subscribed confessions of debt and promises of payment with the names of the richest Syrians. They pleaded the
established prescription of thirty or forty years; but their defence was overruled by a retrospective edict, which extended the claims of the church to the term of a century; an edict so pregnant with injustice and disorder, that,
after serving this occasional purpose, it was prudently abolished in the same reign. (96) If candour will acquit the emperor himself, and transfer the corruption to his wife and favorites, the suspicion of so foul a vice must still degrade the majesty of his laws; and the advocates of Justinian may acknowledge, that such levity, whatsoever be the motive, is unworthy of a legislator and a man.
The Institutes, A.D. 533, Nov. 21.
Monarchs seldom condescend to become the preceptors of their
subjects; and some praise is due to Justinian, by whose
command an ample system was reduced to a short and
elementary treatise. Among the various institutes of the
Roman law, (97) those of Caius (98) were the most popular in
the East and West; and their use may be considered as an
evidence of their merit. They were selected by the Imperial
delegates, Tribonian, Theophilus, and Dorotheus; and the
freedom and purity of the Antonines was incrusted with the
coarser materials of a degenerate age. The same volume
which introduced the youth of Rome, Constantinople, and
Berytus, to the gradual study of the Code and Pandects, is
still precious to the historian, the philosopher, and the
magistrate. The INSTITUTES of Justinian are divided into
four books: they proceed, with no contemptible method, from,
1. Persons, to, 2. Things, and from things, to, 3. Actions; and the article 4., of Private Wrongs, is terminated by the principles of Criminal Law.
1. Of Persons
Freemen and slaves.
The distinction of ranks and persons is the firmest basis of
a mixed and limited government. In France, the remains of
liberty are kept alive by the spirit, the honours, and even
the prejudices, of fifty thousand nobles. (99) Two hundred
families supply, in lineal descent, the second branch of English legislature, which maintains, between the king and
commons, the balance of the constitution. A gradation of
patricians and plebeians, of strangers and subjects, has
supported the aristocracy of Genoa, Venice, and ancient
Rome. The perfect equality of men is the point in which the
extremes of democracy and despotism are confounded; since
the majesty of the prince or people would be offended, if
any heads were exalted above the level of their
fellow-slaves or fellow-citizens. In the decline of the
Roman empire, the proud distinctions of the republic were
gradually abolished, and the reason or instinct of Justinian
completed the simple form of an absolute monarchy. The
emperor could not eradicate the popular reverence which
always waits on the possession of hereditary wealth, or the
memory of famous ancestors. He delighted to honor, with
titles and emoluments, his generals, magistrates, and
senators; and his precarious indulgence communicated some
rays of their glory to the persons of their wives and
children. But in the eye of the law, all Roman citizens
were equal, and all subjects of the empire were citizens of
Rome. That inestimable character was degraded to an
obsolete and empty name. The voice of a Roman could no
longer enact his laws, or create the annual ministers of his
power: his constitutional rights might have checked the
arbitrary will of a master: and the bold adventurer from
Germany or Arabia was admitted, with equal favor, to the
civil and military command, which the citizen alone had been
once entitled to assume over the conquests of his fathers.
The first Caesars had scrupulously guarded the distinction
of ingenuous and servile birth, which was decided by the
condition of the mother; and the candor of the laws was
satisfied, if her freedom could be ascertained, during a
single moment, between the conception and the delivery. The
slaves, who were liberated by a generous master, immediately
entered into the middle class of libertines or freedmen; but
they could never be enfranchised from the duties of
obedience and gratitude; whatever were the fruits of their
industry, their patron and his family inherited the third
part; or even the whole of their fortune, if they died
without children and without a testament. Justinian
respected the rights of patrons; but his indulgence removed
the badge of disgrace from the two inferior orders of
freedmen; whoever ceased to be a slave, obtained, without
reserve or delay, the station of a citizen; and at length
the dignity of an ingenuous birth, which nature had refused,
was created, or supposed, by the omnipotence of the emperor.
Whatever restraints of age, or forms, or numbers, had been
formerly introduced to check the abuse of manumissions, and
the too rapid increase of vile and indigent Romans, he
finally abolished; and the spirit of his laws promoted the
extinction of domestic servitude. Yet the eastern provinces
were filled, in the time of Justinian, with multitudes of
slaves, either born or purchased for the use of their
masters; and the price, from ten to seventy pieces of gold,
was determined by their age, their strength, and their
education. (100) But the hardships of this dependent state
were continually diminished by the influence of government
and religion: and the pride of a subject was no longer
elated by his absolute dominion over the life and happiness
of his bondsman. (101)
Fathers and children.
The law of nature instructs most animals to cherish and
educate their infant progeny. The law of reason inculcates
to the human species the returns of filial piety. But the
exclusive, absolute, and perpetual dominion of the father
over his children, is peculiar to the Roman jurisprudence,
(102) and seems to be coeval with the foundation of the city.
(103) The paternal power was instituted or confirmed by
Romulus himself; and, after the practice of three centuries,
it was inscribed on the fourth table of the Decemvirs. In
the forum, the senate, or the camp, the adult son of a Roman
citizen enjoyed the public and private rights of a person:
in his father's house he was a mere thing; confounded by
the laws with the movables, the cattle, and the slaves, whom
the capricious master might alienate or destroy, without
being responsible to any earthly tribunal. The hand which
bestowed the daily sustenance might resume the voluntary
gift, and whatever was acquired by the labor or fortune of
the son was immediately lost in the property of the father.
His stolen goods (his oxen or his children) might be
recovered by the same action of theft; (104) and if either
had been guilty of a trespass, it was in his own option to
compensate the damage, or resign to the injured party the
obnoxious animal. At the call of indigence or avarice, the
master of a family could dispose of his children or his
slaves. But the condition of the slave was far more
advantageous, since he regained, by the first manumission,
his alienated freedom: the son was again restored to his
unnatural father; he might be condemned to servitude a
second and a third time, and it was not till after the third
sale and deliverance, (105) that he was enfranchised from the
domestic power which had been so repeatedly abused.
According to his discretion, a father might chastise the
real or imaginary faults of his children, by stripes, by
imprisonment, by exile, by sending them to the country to
work in chains among the meanest of his servants. The
majesty of a parent was armed with the power of life and
death; (106) and the examples of such bloody executions,
which were sometimes praised and never punished, may be
traced in the annals of Rome beyond the times of Pompey and
Augustus. Neither age, nor rank, nor the consular office,
nor the honors of a triumph, could exempt the most
illustrious citizen from the bonds of filial subjection:
(107) his own descendants were included in the family of
their common ancestor; and the claims of adoption were not
less sacred or less rigorous than those of nature. Without
fear, though not without danger of abuse, the Roman
legislators had reposed an unbounded confidence in the
sentiments of paternal love; and the oppression was tempered
by the assurance that each generation must succeed in its
turn to the awful dignity of parent and master.
Limitations of the paternal authority.
The first limitation of paternal power is ascribed to the
justice and humanity of Numa; and the maid who, with his
father's consent, had espoused a freeman, was protected from
the disgrace of becoming the wife of a slave. In the first
ages, when the city was pressed, and often famished, by her
Latin and Tuscan neighbors, the sale of children might be a
frequent practice; but as a Roman could not legally purchase
the liberty of his fellow-citizen, the market must gradually
fail, and the trade would be destroyed by the conquests of
the republic. An imperfect right of property was at length
communicated to sons; and the threefold distinction of
profectitious, adventitious, and professional was
ascertained by the jurisprudence of the Code and Pandects.
(108) Of all that proceeded from the father, he imparted only
the use, and reserved the absolute dominion; yet if his
goods were sold, the filial portion was excepted, by a
favorable interpretation, from the demands of the creditors.
In whatever accrued by marriage, gift, or collateral
succession, the property was secured to the son; but the
father, unless he had been specially excluded, enjoyed the
usufruct during his life. As a just and prudent reward of
military virtue, the spoils of the enemy were acquired,
possessed, and bequeathed by the soldier alone; and the fair
analogy was extended to the emoluments of any liberal
profession, the salary of public service, and the sacred
liberality of the emperor or empress. The life of a citizen
was less exposed than his fortune to the abuse of paternal
power. Yet his life might be adverse to the interest or
passions of an unworthy father: the same crimes that flowed
from the corruption, were more sensibly felt by the
humanity, of the Augustan age; and the cruel Erixo, who
whipped his son till he expired, was saved by the emperor
from the just fury of the multitude. (109) The Roman father,
from the license of servile dominion, was reduced to the
gravity and moderation of a judge. The presence and opinion
of Augustus confirmed the sentence of exile pronounced
against an intentional parricide by the domestic tribunal of
Arius. Adrian transported to an island the jealous parent,
who, like a robber, had seized the opportunity of hunting,
to assassinate a youth, the incestuous lover of his
step-mother. (110) A private jurisdiction is repugnant to the
spirit of monarchy; the parent was again reduced from a
judge to an accuser; and the magistrates were enjoined by
Severus Alexander to hear his complaints and execute his
sentence. He could no longer take the life of a son without
incurring the guilt and punishment of murder; and the pains
of parricide, from which he had been excepted by the
Pompeian law, were finally inflicted by the justice of
Constantine. (111) The same protection was due to every
period of existence; and reason must applaud the humanity of
Paulus, for imputing the crime of murder to the father who
strangles, or starves, or abandons his new-born infant; or
exposes him in a public place to find the mercy which he
himself had denied. But the exposition of children was the
prevailing and stubborn vice of antiquity: it was sometimes
prescribed, often permitted, almost always practised with
impunity, by the nations who never entertained the Roman
ideas of paternal power; and the dramatic poets, who appeal
to the human heart, represent with indifference a popular
custom which was palliated by the motives of economy and
compassion. (112) If the father could subdue his own
feelings, he might escape, though not the censure, at least
the chastisement, of the laws; and the Roman empire was
stained with the blood of infants, till such murders were
included, by Valentinian and his colleagues, in the letter
and spirit of the Cornelian law. The lessons of
jurisprudence (113) and Christianity had been insufficient to
eradicate this inhuman practice, till their gentle influence
was fortified by the terrors of capital punishment. (114)
Husbands and wives.
Experience has proved, that savages are the tyrants of the
female sex, and that the condition of women is usually
softened by the refinements of social life. In the hope of
a robust progeny, Lycurgus had delayed the season of
marriage: it was fixed by Numa at the tender age of twelve
years, that the Roman husband might educate to his will a
pure and obedient virgin. (115) The religious rites of marriage According to the custom of antiquity, he bought his bride of her parents, and she fulfilled the coemption by purchasing, with three pieces of copper, a just introduction to his house and household
deities. A sacrifice of fruits was offered by the pontiffs
in the presence of ten witnesses; the contracting parties
were seated on the same sheep-skin; they tasted a salt cake
of far or rice; and this confarreation, (116) which denoted
the ancient food of Italy, served as an emblem of their
mystic union of mind and body. But this union on the side of
the woman was rigorous and unequal; and she renounced the
name and worship of her father's house, to embrace a new
servitude, decorated only by the title of adoption, a
fiction of the law, neither rational nor elegant, bestowed
on the mother of a family (117) (her proper appellation) the
strange characters of sister to her own children, and of
daughter to her husband or master, who was invested with the
plenitude of paternal power. By his judgment or caprice her
behavior was approved, or censured, or chastised; he
exercised the jurisdiction of life and death; and it was
allowed, that in the cases of adultery or drunkenness, (118)
the sentence might be properly inflicted. She acquired and
inherited for the sole profit of her lord; and so clearly
was woman defined, not as a person, but as a thing, that, if
the original title were deficient, she might be claimed,
like other movables, by the use and possession of an entire
year. The inclination of the Roman husband discharged or
withheld the conjugal debt, so scrupulously exacted by the
Athenian and Jewish laws: (119) but as polygamy was unknown,
he could never admit to his bed a fairer or a more favoured
partner.
Freedom of the matrimonial contract.
After the Punic triumphs, the matrons of Rome aspired to the
common benefits of a free and opulent republic: their wishes
were gratified by the indulgence of fathers and lovers, and
their ambition was unsuccessfully resisted by the gravity of
Cato the Censor. (120) They declined the solemnities of the
old nuptiais; defeated the annual prescription by an absence
of three days; and, without losing their name or
independence, subscribed the liberal and definite terms of a
marriage contract. Of their private fortunes, they
communicated the use, and secured the property: the estates
of a wife could neither be alienated nor mortgaged by a
prodigal husband; their mutual gifts were prohibited by the
jealousy of the laws; and the misconduct of either party
might afford, under another name, a future subject for an
action of theft. To this loose and voluntary compact,
religious and civil rights were no longer essential; and,
between persons of a similar rank, the apparent community of
life was allowed as sufficient evidence of their nuptials.
The dignity of marriage was restored by the Christians, who
derived all spiritual grace from the prayers of the faithful
and the benediction of the priest or bishop. The origin,
validity, and duties of the holy institution were regulated
by the tradition of the synagogue, the precepts of the
gospel, and the canons of general or provincial synods; (121)
and the conscience of the Christians was awed by the decrees
and censures of their ecclesiastical rulers. Yet the
magistrates of Justinian were not subject to the authority
of the church: the emperor consulted the unbelieving
civilians of antiquity, and the choice of matrimonial laws
in the Code and Pandects, is directed by the earthly motives
of justice, policy, and the natural freedom of both sexes.
(122)
Liberty and abuse of divorce.
Besides the agreement of the parties, the essence of every
rational contract, the Roman marriage required the previous
approbation of the parents. A father might be forced by some
recent laws to supply the wants of a mature daughter; but
even his insanity was not gradually allowed to supersede the
necessity of his consent. The causes of the dissolution of
matrimony have varied among the Romans; (123) but the most
solemn sacrament, the confarreation itself, might always be
done away by rites of a contrary tendency. In the first
ages, the father of a family might sell his children, and
his wife was reckoned in the number of his children: the
domestic judge might pronounce the death of the offender, or
his mercy might expel her from his bed and house; but the
slavery of the wretched female was hopeless and perpetual,
unless he asserted for his own convenience the manly
prerogative of divorce. The warmest applause has been
lavished on the virtue of the Romans, who abstained from the
exercise of this tempting privilege above five hundred
years: (124) but the same fact evinces the unequal terms of a
connection in which the slave was unable to renounce her
tyrant, and the tyrant was unwilling to relinquish his
slave. When the Roman matrons became the equal and
voluntary companions of their lords, a new jurisprudence was
introduced, that marriage, like other partnerships, might be
dissolved by the abdication of one of the associates. In
three centuries of prosperity and corruption, this principle
was enlarged to frequent practice and pernicious abuse.
Passion, interest, or caprice, suggested daily motives for
the dissolution of marriage; a word, a sign, a message, a
letter, the mandate of a freedman, declared the separation;
the most tender of human connections was degraded to a
transient society of profit or pleasure. According to the
various conditions of life, both sexes alternately felt the
disgrace and injury: an inconstant spouse transferred her
wealth to a new family, abandoning a numerous, perhaps a
spurious, progeny to the paternal authority and care of her
late husband; a beautiful virgin might be dismissed to the
world, old, indigent, and friendless; but the reluctance of
the Romans, when they were pressed to marriage by Augustus,
sufficiently marks, that the prevailing institutions were
least favorable to the males. A specious theory is confuted
by this free and perfect experiment, which demonstrates,
that the liberty of divorce does not contribute to happiness
and virtue. The facility of separation would destroy all
mutual confidence, and inflame every trifling dispute: the
minute difference between a husband and a stranger, which
might so easily be removed, might still more easily be
forgotten; and the matron, who in five years can submit to
the embraces of eight husbands, must cease to reverence the
chastity of her own person. (125)
Limitations of the liberty of divorce.
Insufficient remedies followed with distant and tardy steps
the rapid progress of the evil. The ancient worship of the
Romans afforded a peculiar goddess to hear and reconcile the
complaints of a married life; but her epithet of Viriplaca,
(126) the appeaser of husbands, too clearly indicates on
which side submission and repentance were always expected.
Every act of a citizen was subject to the judgment of the
censors; the first who used the privilege of divorce
assigned, at their command, the motives of his conduct; (127)
and a senator was expelled for dismissing his virgin spouse
without the knowledge or advice of his friends. Whenever an
action was instituted for the recovery of a marriage
portion, the praetor, as the guardian of equity, examined
the cause and the characters, and gently inclined the scale
in favor of the guiltless and injured party. Augustus, who
united the powers of both magistrates, adopted their
different modes of repressing or chastising the license of
divorce. (128) The presence of seven Roman witnesses was
required for the validity of this solemn and deliberate act:
if any adequate provocation had been given by the husband,
instead of the delay of two years, he was compelled to
refund immediately, or in the space of six months; but if he
could arraign the manners of his wife, her guilt or levity
was expiated by the loss of the sixth or eighth part of her
marriage portion. The Christian princes were the first who
specified the just causes of a private divorce; their
institutions, from Constantine to Justinian, appear to
fluctuate between the custom of the empire and the wishes of
the church, (129) and the author of the Novels too frequently
reforms the jurisprudence of the Code and Pandects. In the
most rigorous laws, a wife was condemned to support a
gamester, a drunkard, or a libertine, unless he were guilty
of homicide, poison, or sacrilege, in which cases the
marriage, as it should seem, might have been dissolved by
the hand of the executioner. But the sacred right of the
husband was invariably maintained, to deliver his name and
family from the disgrace of adultery: the list of mortal
sins, either male or female, was curtailed and enlarged by
successive regulations, and the obstacles of incurable
impotence, long absence, and monastic profession, were
allowed to rescind the matrimonial obligation. Whoever
transgressed the permission of the law, was subject to
various and heavy penalties. The woman was stripped of her
wealth and ornaments, without excepting the bodkin of her
hair: if the man introduced a new bride into his bed, her
fortune might be lawfully seized by the vengeance of his
exiled wife. Forfeiture was sometimes commuted to a fine;
the fine was sometimes aggravated by transportation to an
island, or imprisonment in a monastery; the injured party
was released from the bonds of marriage; but the offender,
during life, or a term of years, was disabled from the
repetition of nuptials. The successor of Justinian yielded
to the prayers of his unhappy subjects, and restored the
liberty of divorce by mutual consent: the civilians were
unanimous, (130) the theologians were divided, (131) and the
ambiguous word, which contains the precept of Christ, is
flexible to any interpretation that the wisdom of a
legislator can demand.
Incest, concubines and bastards.
The freedom of love and marriage was restrained among the
Romans by natural and civil impediments. An instinct,
almost innate and universal, appears to prohibit the
incestuous commerce (132) of parents and children in the
infinite series of ascending and descending generations.
Concerning the oblique and collateral branches, nature is
indifferent, reason mute, and custom various and arbitrary.
In Egypt, the marriage of brothers and sisters was admitted
without scruple or exception: a Spartan might espouse the
daughter of his father, an Athenian, that of his mother; and
the nuptials of an uncle with his niece were applauded at
Athens as a happy union of the dearest relations. The
profane lawgivers of Rome were never tempted by interest or
superstition to multiply the forbidden degrees: but they
inflexibly condemned the marriage of sisters and brothers,
hesitated whether first cousins should be touched by the
same interdict; revered the parental character of aunts and
uncles, and treated affinity and adoption as a just
imitation of the ties of blood. According to the proud
maxims of the republic, a legal marriage could only be
contracted by free citizens; an honorable, at least an
ingenuous birth, was required for the spouse of a senator:
but the blood of kings could never mingle in legitimate
nuptials with the blood of a Roman; and the name of Stranger
degraded Cleopatra and Berenice, (133) to live the concubines of Mark Antony and Titus. (134) This appellation, indeed, so
injurious to the majesty, cannot without indulgence be
applied to the manners, of these Oriental queens. A
concubine, in the strict sense of the civilians, was a woman
of servile or plebeian extraction, the sole and faithful
companion of a Roman citizen, who continued in a state of
celibacy. Her modest station, below the honors of a wife,
above the infamy of a prostitute, was acknowledged and
approved by the laws: from the age of Augustus to the tenth
century, the use of this secondary marriage prevailed both
in the West and East; and the humble virtues of a concubine
were often preferred to the pomp and insolence of a noble
matron. In this connection, the two Antonines, the best of
princes and of men, enjoyed the comforts of domestic love:
the example was imitated by many citizens impatient of
celibacy, but regardful of their families. If at any time
they desired to legitimate their natural children, the
conversion was instantly performed by the celebration of
their nuptials with a partner whose faithfulness and
fidelity they had already tried. By this epithet of
natural, the offspring of the concubine were distinguished
from the spurious brood of adultery, prostitution, and
incest, to whom Justinian reluctantly grants the necessary
aliments of life; and these natural children alone were
capable of succeeding to a sixth part of the inheritance of
their reputed father. According to the rigor of law,
bastards were entitled only to the name and condition of
their mother, from whom they might derive the character of a
slave, a stranger, or a citizen. The outcasts of every
family were adopted without reproach as the children of the
state. (135)
Guardians and wards.
The relation of guardian and ward, or in Roman words of
tutor and pupil, which covers so many titles of the
Institutes and Pandects, (136) is of a very simple and
uniform nature. The person and property of an orphan must
always be trusted to the custody of some discreet friend.
If the deceased father had not signified his choice, the
agnats, or paternal kindred of the nearest degree, were
compelled to act as the natural guardians: the Athenians
were apprehensive of exposing the infant to the power of
those most interested in his death; but an axiom of Roman
jurisprudence has pronounced, that the charge of tutelage
should constantly attend the emolument of succession. If
the choice of the father, and the line of consanguinity,
afforded no efficient guardian, the failure was supplied by
the nomination of the praetor of the city, or the president
of the province. But the person whom they named to this
public office might be legally excused by insanity or
blindness, by ignorance or inability, by previous enmity or
adverse interest, by the number of children or guardianships
with which he was already burdened, and by the immunities
which were granted to the useful labors of magistrates,
lawyers, physicians, and professors. Till the infant could
speak, and think, he was represented by the tutor, whose
authority was finally determined by the age of puberty.
Without his consent, no act of the pupil could bind himself
to his own prejudice, though it might oblige others for his
personal benefit. It is needless to observe, that the tutor
often gave security, and always rendered an account, and
that the want of diligence or integrity exposed him to a
civil and almost criminal action for the violation of his
sacred trust. The age of puberty had been rashly fixed by
the civilians at fourteen; but as the faculities of the
mind ripen more slowly than those of the body, a curator was
interposed to guard the fortunes of a Roman youth from his
own inexperience and headstrong passions. Such a trustee
had been first instituted by the praetor, to save a family
from the blind havoc of a prodigal or madman; and the minor
was compelled, by the laws, to solicit the same protection,
to give validity to his acts till he accomplished the full
period of twenty-five years. Women were condemned to the
perpetual tutelage of parents, husbands, or guardians; a sex
created to please and obey was never supposed to have
attained the age of reason and experience. Such, at least,
was the stern and haughty spirit of the ancient law, which
had been insensibly mollified before the time of Justinian.
2 Of Things
Right of property.
The original right of property can only be justified by
the accident or merit of prior occupancy; and on this
foundation it is wisely established by the philosophy of the
civilians. (137) The savage who hollows a tree, inserts a sharp stone into a wooden handle, or applies a string to an elastic branch, becomes in a state of nature the just
proprietor of the canoe, the bow, or the hatchet. The
materials were common to all, the new form, the produce of
his time and simple industry, belongs solely to himself. His
hungry brethren cannot, without a sense of their own
injustice, extort from the hunter the game of the forest
overtaken or slain by his personal strength and dexterity.
If his provident care preserves and multiplies the tame
animals, whose nature is tractable to the arts of education,
he acquires a perpetual title to the use and service of
their numerous progeny, which derives its existence from him
alone. If he encloses and cultivates a field for their
sustenance and his own, a barren waste is converted into a
fertile soil; the seed, the manure, the labor, create a new
value, and the rewards of harvest are painfully earned by
the fatigues of the revolving year. In the successive
states of society, the hunter, the shepherd, the husbandman,
may defend their possessions by two reasons which forcibly
appeal to the feelings of the human mind: that whatever they
enjoy is the fruit of their own industry; and that every man
who envies their felicity, may purchase similar acquisitions
by the exercise of similar diligence. Such, in truth, may
be the freedom and plenty of a small colony cast on a
fruitful island. But the colony multiplies, while the space
still continues the same; the common rights, the equal
inheritance of mankind. are engrossed by the bold and
crafty; each field and forest is circumscribed by the
landmarks of a jealous master; and it is the peculiar praise
of the Roman jurisprudence, that i asserts the claim of the
first occupant to the wild animals of the earth, the air,
and the waters. In the progress from primitive equity to
final injustice, the steps are silent, the shades are almost
imperceptible, and the absolute monopoly is guarded by
positive laws and artificial reason. The active, insatiate
principle of self-love can alone supply the arts of life and
the wages of industry; and as soon as civil government and
exclusive property have been introduced, they become
necessary to the existence of the human race. Except in the
singular institutions of Sparta, the wisest legislators have
disapproved an agrarian law as a false and dangerous
innovation. Among the Romans, the enormous disproportion of
wealth surmounted the ideal restraints of a doubtful
tradition, and an obsolete statute; a tradition that the
poorest follower of Romulus had been endowed with the
perpetual inheritance of two jugera; (138) a statute which
confined the richest citizen to the measure of five hundred
jugera, or three hundred and twelve acres of land. The
original territory of Rome consisted only of some miles of
wood and meadow along the banks of the Tyber; and domestic
exchange could add nothing to the national stock. But the
goods of an alien or enemy were lawfully exposed to the
first hostile occupier; the city was enriched by the
profitable trade of war; and the blood of her sons was the
only price that was paid for the Volscian sheep, the slaves
of Briton, or the gems and gold of Asiatic kingdoms. In the
language of ancient jurisprudence, which was corrupted and
forgotten before the age of Justinian, these spoils were
distinguished by the name of manceps or manicipium, taken
with the hand; and whenever they were sold or emancipated,
the purchaser required some assurance that they had been the
property of an enemy, and not of a fellow- citizen. (139) A
citizen could only forfeit his rights by apparent
dereliction, and such dereliction of a valuable interest
could not easily be presumed. Yet, according to the Twelve
Tables, a prescription of one year for movables, and of two
years for immovables, abolished the claim of the ancient
master, if the actual possessor had acquired them by a fair
transaction from the person whom he believed to be the
lawful proprietor. (140) Such conscientious injustice,
without any mixture of fraud or force could seldom injure
the members of a small republic; but the various periods of
three, of ten, or of twenty years, determined by Justinian,
are more suitable to the latitude of a great empire. It is
only in the term of prescription that the distinction of
real and personal fortune has been remarked by the
civilians; and their general idea of property is that of
simple, uniform, and absolute dominion. The subordinate
exceptions of use, of usufruct, (141) of servitude, (142)
imposed for the benefit of a neighbour on lands and houses,
are abundantly explained by the professors of jurisprudence.
The claims of property, as far as they are altered by the
mixture, the division, or the transformation of substances,
are investigated with metaphysical subtilty by the same
civilians.
Of inheritance and succession.
The personal title of the first proprietor must be
determined by his death: but the possession, without any
appearance of change, is peaceably continued in his
children, the associates of his toil, and the partners of
his wealth. This natural inheritance has been protected by
the legislators of every climate and age, and the father is
encouraged to persevere in slow and distant improvements, by
the tender hope, that a long posterity will enjoy the fruits
of his labor. The principle of hereditary succession is
universal; but the order has been variously established by
convenience or caprice, by the spirit of national
institutions, or by some partial example which was
originally decided by fraud or violence. The jurisprudence
of the Romans appear to have deviated from the inequality of
nature much less than the Jewish, (143) the Athenian, (144) or
the English institutions. (145) On the death of a citizen,
all his descendants, unless they were already freed from his
paternal power, were called to the inheritance of his
possessions. The insolent prerogative of primogeniture was
unknown; the two sexes were placed on a just level; all the
sons and daughters were entitled to an equal portion of the
patrimonial estate; and if any of the sons had been
intercepted by a premature death, Civil degrees of kindred. his person was represented, and his share was divided, by his surviving children. On the failure of the direct line, the right of succession must diverge to the collateral branches. The
degrees of kindred (146) are numbered by the civilians, ascending from the last possessor to a common parent, and descending from the common parent to the next heir: my father stands in the first degree, my brother in the second, his children in the third, and the remainder of the series may be conceived by a fancy, or pictured in a genealogical table. In this computation, a distinction was made,
essential to the laws and even the constitution of Rome; the agnats, or persons connected by a line of males, were called, as they stood in the nearest degree, to an equal partition; but a female was incapable of transmitting any legal claims; and the cognats of every rank, without
excepting the dear relation of a mother and a son, were disinherited by the Twelve Tables, as strangers and aliens. Among the Romans a gens or lineage was united by a common name and domestic rites; the various cognomens or surnames of Scipio, or Marcellus, distinguished from each other the subordinate branches or families of the Cornelian or
Claudian race: the default of the agnats, of the same surname, was supplied by the larger denomination of gentiles; and the vigilance of the laws maintained, in the same name, the perpetual descent of religion and property. A similar principle dictated the Voconian law, (147) which abolished the right of female inheritance. As long as virgins were given or sold in marriage, the adoption of the wife extinguished the hopes of the daughter. But the equal succession of independent matrons supported their pride and luxury, and might transport into a foreign house the riches of their fathers. While the maxims of Cato (148) were revered, they tended to perpetuate in each family a just and virtuous mediocrity: till female blandishments insensibly triumphed; and every salutary restraint was lost in the dissolute greatness of the republic. The rigor of the decemvirs was tempered by the equity of the praetors. Their edicts restored and emancipated posthumous children to the rights of nature; and upon the failure of the agnats, they
preferred the blood of the cognats to the name of the
gentiles whose title and character were insensibly covered
with oblivion. The reciprocal inheritance of mothers and
sons was established in the Tertullian and Orphitian decrees
by the humanity of the senate. A new and more impartial
order was introduced by the Novels of Justinian, who
affected to revive the jurisprudence of the Twelve Tables.
The lines of masculine and female kindred were confounded:
the descending, ascending, and collateral series was
accurately defined; and each degree, according tot he
proximity of blood and affection, succeeded to the vacant
possessions of a Roman citizen. (149)
Introduction and liberty of testaments.
The order of succession is regulated by nature, or at least
by the general and permanent reason of the lawgiver: but
this order is frequently violated by the arbitrary and
partial wills, which prolong the dominion of the testator
beyond the grave. (150) In the simple state of society, this
last use or abuse of the right of property is seldom
indulged: it was introduced at Athens by the laws of Solon;
and the private testaments of the father of a family are
authorized by the Twelve Tables. Before the time of the
decemvirs, (151) a Roman citizen exposed his wishes and
motives to the assembly of the thirty curiae or parishes,
and the general law of inheritance was suspended by an
occasional act of the legislature. After the permission of
the decemvirs, each private lawgiver promulgated his verbal
or written testament in the presence of five citizens, who
represented the five classes of the Roman people; a sixth
witness attested their concurrence; a seventh weighed the
copper money, which was paid by an imaginary purchaser; and
the estate was emancipated by a fictitious sale and
immediate release. This singular ceremony, (152) which
excited the wonder of the Greeks, was still practised in the
age of Severus; but the praetors had already approved a more
simple testament, for which they required the seals and
signatures of seven witnesses, free from all legal
exception, and purposely summoned for the execution of that
important act. A domestic monarch, who reigned over the
lives and fortunes of his children, might distribute their
respective shares according to the degrees of their merit or
his affection; his arbitrary displeasure chastised an
unworthy son by the loss of his inheritance, and the
mortifying preference of a stranger. But the experience of
unnatural parents recommended some limitations of their
testamentary powers. A son, or, by the laws of Justinian,
even a daughter, could no longer be disinherited by their
silence: they were compelled to name the criminal, and to
specify the offence; and the justice of the emperor
enumerated the sole causes that could justify such a
violation of the first principles of nature and society.
(153) Unless a legitimate portion, a fourth part, had been
reserved for the children, they were entitled to institute
an action or complaint of inofficious testament; to suppose
that their father's understanding was impaired by sickness
or age; and respectfully to appeal from his rigorous
sentence to the deliberate wisdom of the magistrate. Legacies In the Roman jurisprudence, an essential distinction was admitted between the inheritance and the legacies. The heirs who succeeded to the entire unity, or to any of the twelve
fractions of the substance of the testator, represented his
civil and religious character, asserted his rights,
fulfilled his obligations, and discharged the gifts of
friendship or liberality, which his last will had bequeathed
under the name of legacies. But as the imprudence or
prodigality of a dying man might exhaust the inheritance,
and leave only risk and labor to his successor, he was
empowered to retain the Falcidian portion; to deduct, before
the payment of the legacies, a clear fourth for his own
emolument. A reasonable time was allowed to examine the
proportion between the debts and the estate, to decide
whether he should accept or refuse the testament; and if he
used the benefit of an inventory, the demands of the
creditors could not exceed the valuation of the effects.
The last will of a citizen might be altered during his life,
or rescinded after his death: the persons whom he named
might die before him, or reject the inheritance, or be
exposed to some legal disqualification. In the
contemplation of these events, he was permitted to
substitute second and third heirs, to replace each other
according to the order of the testament; and the incapacity
of a madman or an infant to bequeath his property might be
supplied by a similar substitution. (154) But the power of
the testator expired with the acceptance of the testament:
each Roman of mature age and discretion acquired the
absolute dominion of his inheritance, and the simplicity of
the civil law was never clouded by the long and intricate
entails which confine the happiness and freedom of unborn
generations.
Codicils and trusts.
Conquest and the formalities of law established the use of
codicils. If a Roman was surprised by death in a remote
province of the empire, he addressed a short epistle to his
legitimate or testamentary heir; who fulfilled with honor,
or neglected with impunity, this last request, which the
judges before the age of Augustus were not authorized to
enforce. A codicil might be expressed in any mode, or in
any language; but the subscription of five witnesses must
declare that it was the genuine composition of the author.
His intention, however laudable, was sometimes illegal; and
the invention of fidei-commissa, or trusts, arose form the
struggle between natural justice and positive jurisprudence.
A stranger of Greece or Africa might be the friend or
benefactor of a childless Roman, but none, except a
fellow-citizen, could act as his heir. The Voconian law,
which abolished female succession, restrained the legacy or
inheritance of a woman to the sum of one hundred thousand
sesterces; (155) and an only daughter was condemned almost as an alien in her father's house. The zeal of friendship, and
parental affection, suggested a liberal artifice: a
qualified citizen was named in the testament, with a prayer
or injunction that he would restore the inheritance to the
person for whom it was truly intended. Various was the
conduct of the trustees in this painful situation: they had
sworn to observe the laws of their country, but honor
prompted them to violate their oath; and if they preferred
their interest under the mask of patriotism, they forfeited
the esteem of every virtuous mind. The declaration of
Augustus relieved their doubts, gave a legal sanction to
confidential testaments and codicils, and gently unravelled
the forms and restraints of the republican jurisprudence.
(156) But as the new practice of trusts degenerated into some
abuse, the trustee was enabled, by the Trebellian and
Pegasian decrees, to reserve one fourth of the estate, or to transfer on the head of the real heir all the debts and actions of the succession. The interpretation of testaments was strict and literal; but the language of trusts and codicils was delivered from the minute and technical
accuracy of the civilians. (157)
3 Of Actions
The general duties of mankind are imposed by their public and private relations: but their specific obligations to each other can only be the effect of, 1. a promise, 2. a benefit, or 3. an injury: and when these obligations are ratified by law, the interested party may compel the performance by a judicial action. On this principle, the civilians of every country have erected a similar jurisprudence, the fair conclusion of universal reason and justice. (158)
Promises.
1. The goddess of faith (of human and social faith) was
worshipped, not only in her temples, but in the lives of the Romans; and if that nation was deficient in the more amiable qualities of benevolence and generosity, they astonished the Greeks by their sincere and simple performance of the most burdensome engagements. (159) Yet among the same people, according to the rigid maxims of the patricians and decemvirs, a naked pact, a promise, or even an oath, did not create any civil obligation, unless it was confirmed by the legal form of a stipulation. Whatever might be the
etymology of the Latin word, it conveyed the idea of a firm and irrevocable contract, which was always expressed in the mode of a question and answer. Do you promise to pay me one hundred pieces of gold? was the solemn interrogation of Seius. I do promise, was the reply of Sempronius. The
friends of Sempronius, who answered for his ability and inclination, might be separately sued at the option of
Seius; and the benefit of partition, or order of reciprocal
actions, insensibly deviated from the strict theory of
stipulation. The most cautious and deliberate consent was
justly required to sustain the validity of a gratuitous
promise; and the citizen who might have obtained a legal
security, incurred the suspicion of fraud, and paid the
forfeit of his neglect. But the ingenuity of the civilians
successfully labored to convert simple engagements into the
form of solemn stipulations. The praetors, as the guardians
of social faith, admitted every rational evidence of a
voluntary and deliberate act, which in their tribunal
produced an equitable obligation, and for which they gave an
action and a remedy. (160)
Benefits
2. The obligations of the second class, as they were
contracted by the delivery of a thing, are marked by the
civilians with the epithet of real. (161) A grateful return
is due to the author of a benefit; and whoever is intrusted
with the property of another, has bound himself to the
sacred duty of restitution. In the case of a friendly loan,
the merit of generosity is on the side of the lender only;
in a deposit, on the side of the receiver; but in a pledge,
and the rest of the selfish commerce of ordinary life, the
benefit is compensated by an equivalent, and the obligation
to restore is variously modified by the nature of the
transaction. The Latin language very happily expresses the
fundamental difference between the commodatum and the
mutuum, which our poverty is reduced to confound under the
vague and common appellation of a loan. In the former, the
borrower was obliged to restore the same individual thing
with which he had been accommodated for the temporary supply
of his wants; in the latter, it was destined for his use and
consumption, and he discharged this mutual engagement, by
substituting the same specific value according to a just
estimation of number, of weight, and of measure. In the
contract of sale, the absolute dominion is transferred to
the purchaser, and he repays the benefit with an adequate
sum of gold or silver, the price and universal standard of
all earthly possessions. The obligation of another
contract, that of location, is of a more complicated kind.
Lands or houses, labor or talents, may be hired for a
definite term; at the expiration of the time, the thing
itself must be restored to the owner, with an additional
reward for the beneficial occupation and employment. In
these lucrative contracts, to which may be added those of
partnership and commissions, the civilians sometimes imagine
the delivery of the object, and sometimes presume the
consent of the parties. The substantial pledge has been
refined into the invisible rights of a mortgage or
hypotheca; and the agreement of sale, for a certain price,
imputes, from that moment, the chances of gain or loss to
the account of the purchaser. It may be fairly supposed,
that every man will obey the dictates of his interest; and
if he accepts the benefit, he is obliged to sustain the
expense, of the transaction. In this boundless subject, the
historian will observe the location of land and money, the
rent of the one and the interest of the other, as they
materially affect the prosperity of agriculture and
commerce. The landlord was often obliged to advance the
stock and instruments of husbandry, and to content himself
with a partition of the fruits. If the feeble tenant was
oppressed by accident, contagion, or hostile violence, he
claimed a proportionable relief from the equity of the laws:
five years were the customary term, and no solid or costly
improvements could be expected from a farmer, who, at each
moment might be ejected by the sale of the estate. (162) Interest of money. Usury, (163) the inveterate grievance of the city, had been discouraged by the Twelve Tables, (164) and abolished by the
clamors of the people. It was revived by their wants and
idleness, tolerated by the discretion of the praetors, and
finally determined by the Code of Justinian. Persons of
illustrious rank were confined to the moderate profit of
four per cent.; six was pronounced to be the ordinary and
legal standard of interest; eight was allowed for the
convenience of manufactures and merchants; twelve was
granted to nautical insurance, which the wiser ancients had
not attempted to define; but, except in this perilous
adventure, the practice of exorbitant usury was severely
restrained. (165) The most simple interest was condemned by the clergy of the East and West; (166) but the sense of
mutual benefit, which had triumphed over the law of the
republic, has resisted with equal firmness the decrees of
the church, and even the prejudices of mankind. (167)
Injuries
3. Nature and society impose the strict obligation of
repairing an injury; and the sufferer by private injustice
acquires a personal right and a legitimate action. If the
property of another be intrusted to our care, the requisite
degree of care may rise and fall according to the benefit
which we derive from such temporary possession; we are
seldom made responsible for inevitable accident, but the
consequences of a voluntary fault must always be imputed to
the author. (168) A Roman pursued and recovered his stolen goods by a civil action of theft; they might pass through a succession of pure and innocent hands, but nothing less than
a prescription of thirty years could extinguish his original
claim. They were restored by the sentence of the praetor,
and the injury was compensated by double, or threefold, or
even quadruple damages, as the deed had been perpetrated by
secret fraud or open rapine, as the robber had been
surprised in the fact, or detected by a subsequent research.
The Aquilian law (169) defended the living property of a
citizen, his slaves and cattle, from the stroke of malice or
negligence: the highest price was allowed that could be
ascribed to the domestic animal at any moment of the year
preceding his death; a similar latitude of thirty days was
granted on the destruction of any other valuable effects. A
personal injury is blunted or sharpened by the manners of
the times and the sensibility of the individual: the pain or
the disgrace of a word or blow cannot easily be appreciated
by a pecuniary equivalent. The rude jurisprudence of the
decemvirs had confounded all hasty insults, which did not
amount to the fracture of a limb, by condemning the
aggressor to the common penalty of twenty-five asses. But
the same denomination of money was reduced, in three
centuries, from a pound to the weight of half an ounce: and
the insolence of a wealthy Roman indulged himself in the
cheap amusement of breaking and satisfying the law of the
twelve tables. Veratius ran through the streets striking on
the face the inoffensive passengers, and his attendant
purse-bearer immediately silenced their clamors by the legal
tender of twenty-five pieces of copper, about the value of
one shilling. (170) The equity of the praetors examined and
estimated the distinct merits of each particular complaint.
In the adjudication of civil damages, the magistrate assumed
a right to consider the various circumstances of time and
place, of age and dignity, which may aggravate the shame and
sufferings of the injured person; but if he admitted the
idea of a fine, a punishment, an example, he invaded the
province, though, perhaps, he supplied the defects, of the
criminal law.
4 Of Crimes And Punishments
The execution of the Alban dictator, who was dismembered by
eight horses, is represented by Livy as the first and the
fast instance of Roman cruelty in the punishment of the most
atrocious crimes. (171) But this act of justice, or revenge, was inflicted on a foreign enemy in the heat of victory, and at the command of a single man. Severity of the twelve tables. The twelve tables afford a
more decisive proof of the national spirit, since they were
framed by the wisest of the senate, and accepted by the free
voices of the people; yet these laws, like the statutes of
Draco, (172) are written in characters of blood. (173) They
approve the inhuman and unequal principle of retaliation;
and the forfeit of an eye for an eye, a tooth for a tooth, a
limb for a limb, is rigorously exacted, unless the offender
can redeem his pardon by a fine of three hundred pounds of
copper. The decemvirs distributed with much liberality the
slighter chastisements of flagellation and servitude; and
nine crimes of a very different complexion are adjudged
worthy of death.
1. Any act of treason against the state, or of correspondence with the public enemy. The mode of execution was painful and ignominious: the head of the degenerate Roman was shrouded in a veil, his hands were tied behind his back, and after he had been scourged by the lictor, he was suspended in the midst of the forum on a cross, or inauspicious tree.
2. Nocturnal meetings in the city; whatever might be the pretence, of pleasure, or religion, or the public good.
3. The murder of a citizen; for which the common feelings of mankind demand the blood of the murderer. Poison is still more odious than the sword or dagger; and we are surprised to discover, in two flagitious events, how early such subtle wickedness had infected the simplicity of the republic, and the chaste virtues of the Roman matrons. (174) The parricide, who violated the duties of nature and gratitude, was cast into the river or the sea, enclosed in a sack; and a cock, a viper, a dog, and a monkey, were successively added, as the most suitable companions. (175) Italy produces no monkeys; but the want could never be felt, till the middle of the sixth century first revealed the guilt of a parricide. (176)
4. The malice of an incendiary. After the previous ceremony of whipping, he himself was delivered to the flames; and in this example alone our reason is tempted to applaud the justice of retaliation.
5. Judicial perjury. The corrupt or malicious witness was thrown headlong from the Tarpeian rock, to expiate his falsehood, which was rendered still more fatal by the severity of the penal laws, and the deficiency of written evidence.
6. The corruption of a judge, who accepted bribes to pronounce an iniquitous sentence.
7. Libels and satires, whose rude strains sometimes disturbed the peace of an illiterate city. The author was beaten with clubs, a worthy chastisement, but it is not certain that he was left to expire under the blows of the executioner. (177)
8. The nocturnal mischief of damaging or destroying a neighbour's corn. The criminal was suspended as a grateful victim to Ceres. But the sylvan deities were less implacable, and the extirpation of a more valuable tree was compensated by the moderate fine of twenty-five pounds of copper.
9. Magical incantations; which had power, in the opinion of the Latin shepherds, to exhaust the strength of an enemy, to extinguish his life, and to remove from their seats his deep-rooted plantations.
The cruelty of the twelve tables against insolvent debtors still remains to be told; and I shall dare to prefer the literal sense of antiquity to the specious refinements of modern criticism. (178) After the judicial proof or confession of the debt, thirty days of grace were allowed before a Roman was delivered into the power of his fellow- citizen. In this private prison, twelve ounces of rice were his daily food; he might be bound with a chain of fifteen pounds weight; and his misery was thrice exposed in the market place, to solicit the compassion of his friends and countrymen. At the expiration of sixty days, the debt was discharged by the loss of liberty or life; the insolvent debtor was either put to death, or sold in foreign slavery beyond the Tyber: but, if several creditors were alike obstinate and unrelenting, they might legally dismember his body, and satiate their revenge by this horrid partition. The advocates for this savage law have insisted, that it must strongly operate in deterring idleness and fraud from contracting debts which they were unable to discharge; but experience would dissipate this salutary terror, by proving that no creditor could be found to exact this unprofitable penalty of life or limb. As the manners of Rome were insensibly polished, the criminal code of the decemvirs was abolished by the humanity of accusers, witnesses, and judges; and impunity became the consequence of immoderate rigor. The Porcian and Valerian laws prohibited the magistrates from inflicting on a free citizen any capital, or even corporal, punishment; and the obsolete statutes of blood were artfully, and perhaps truly, ascribed to the spirit, not of patrician, but of regal, tyranny.
Abolition or oblivion of penal laws.
In the absence of penal laws, and the insufficiency of civil
actions, the peace and justice of the city were imperfectly
maintained by the private jurisdiction of the citizens. The
malefactors who replenish our jails are the outcasts of
society, and the crimes for which they suffer may be
commonly ascribed to ignorance, poverty, and brutal
appetite. For the perpetration of similar enormities, a
vile plebeian might claim and abuse the sacred character of
a member of the republic: but, on the proof or suspicion of
guilt, the slave, or the stranger, was nailed to a cross;
and this strict and summary justice might be exercised
without restraint over the greatest part of the populace of
Rome. Each family contained a domestic tribunal, which was
not confined, like that of the praetor, to the cognizance of
external actions: virtuous principles and habits were
inculcated by the discipline of education; and the Roman
father was accountable to the state for the manners of his
children, since he disposed, without appeal, of their life,
their liberty, and their inheritance. In some pressing
emergencies, the citizen was authorized to avenge his
private or public wrongs. The consent of the Jewish, the
Athenian, and the Roman laws approved the slaughter of the
nocturnal thief; though in open daylight a robber could not
be slain without some previous evidence of danger and
complaint. Whoever surprised an adulterer in his nuptial
bed might freely exercise his revenge; (179) the most bloody
and wanton outrage was excused by the provocation; (180) nor was it before the reign of Augustus that the husband was
reduced to weigh the rank of the offender, or that the
parent was condemned to sacrifice his daughter with her
guilty seducer. After the expulsion of the kings, the
ambitious Roman, who should dare to assume their title or
imitate their tyranny, was devoted to the infernal gods:
each of his fellow-citizens was armed with the sword of
justice; and the act of Brutus, however repugnant to
gratitude or prudence, had been already sanctified by the
judgment of his country. (181) The barbarous practice of
wearing arms in the midst of peace, (182) and the bloody
maxims of honor, were unknown to the Romans; and, during the
two purest ages, from the establishment of equal freedom to
the end of the Punic wars, the city was never disturbed by
sedition, and rarely polluted with atrocious crimes. The
failure of penal laws was more sensibly felt, when every
vice was inflamed by faction at home and dominion abroad.
In the time of Cicero, each private citizen enjoyed the
privilege of anarchy; each minister of the republic was
exalted to the temptations of regal power, and their virtues
are entitled to the warmest praise, as the spontaneous
fruits of nature or philosophy. After a triennial
indulgence of lust, rapine, and cruelty, Verres, the tyrant
of Sicily, could only be sued for the pecuniary restitution
of three hundred thousand pounds sterling; and such was the
temper of the laws, the judges, and perhaps the accuser
himself, (183) that, on refunding a thirteenth part of his
plunder, Verres could retire to an easy and luxurious exile.
(184)
Revival of capital punishments.
The first imperfect attempt to restore the proportion of
crimes and punishments was made by the dictator Sylla, who,
in the midst of his sanguinary triumph, aspired to restrain
the license, rather than to oppress the liberty, of the
Romans. He gloried in the arbitrary proscription of four
thousand seven hundred citizens. (185) But, in the character
of a legislator, he respected the prejudices of the times;
and, instead of pronouncing a sentence of death against the
robber or assassin, the general who betrayed an army, or the
magistrate who ruined a province, Sylla was content to
aggravate the pecuniary damages by the penalty of exile, or,
in more constitutional language, by the interdiction of fire
and water. The Cornelian, and afterwards the Pompeian and
Julian, laws introduced a new system of criminal
jurisprudence; (186) and the emperors, from Augustus to
Justinian, disguised their increasing rigor under the names
of the original authors. But the invention and frequent use
of extraordinary pains, proceeded from the desire to extend
and conceal the progress of despotism. In the condemnation
of illustrious Romans, the senate was always prepared to
confound, at the will of their masters, the judicial and
legislative powers. It was the duty of the governors to
maintain the peace of their province, by the arbitrary and
rigid administration of justice; the freedom of the city
evaporated in the extent of empire, and the Spanish
malefactor, who claimed the privilege of a Roman, was
elevated by the command of Galba on a fairer and more lofty
cross. (187) Occasional rescripts issued from the throne to
decide the questions which, by their novelty or importance,
appeared to surpass the authority and discernment of a
proconsul. Transportation and beheading were reserved for
honorable persons; meaner criminals were either hanged, or
burnt, or buried in the mines, or exposed to the wild beasts
of the amphitheatre. Armed robbers were pursued and
extirpated as the enemies of society; the driving away
horses or cattle was made a capital offence; (188) but simple
theft was uniformly considered as a mere civil and private
injury. The degrees of guilt, and the modes of punishment,
were too often determined by the discretion of the rulers,
and the subject was left in ignorance of the legal danger
which he might incur by every action of his life.
Measure of guilt.
A sin, a vice, a crime, are the objects of theology, ethics,
and jurisprudence. Whenever their judgments agree, they
corroborate each other; but, as often as they differ, a
prudent legislator appreciates the guilt and punishment
according to the measure of social injury. On this
principle, the most daring attack on the life and property
of a private citizen is judged less atrocious than the crime
of treason or rebellion, which invades the majesty of the
republic: the obsequious civilians unanimously pronounced,
that the republic is contained in the person of its chief;
and the edge of the Julian law was sharpened by the
incessant diligence of the emperors. The licentious
commerce of the sexes may be tolerated as an impulse of
nature, or forbidden as a source of disorder and corruption;
but the fame, the fortunes, the family of the husband, are
seriously injured by the adultery of the wife. The wisdom of
Augustus, after curbing the freedom of revenge, applied to
this domestic offence the animadversion of the laws: and the
guilty parties, after the payment of heavy forfeitures and
fines, were condemned to long or perpetual exile in two
separate islands. (189) Religion pronounces an equal censure
against the infidelity of the husband; but, as it is not
accompanied by the same civil effects, the wife was never
permitted to vindicate her wrongs; (190) and the distinction
of simple or double adultery, so familiar and so important
in the canon law, is unknown to the jurisprudence of the
Code and the Pandects. Unnatural vice. I touch with reluctance, and
despatch with impatience, a more odious vice, of which
modesty rejects the name, and nature abominates the idea.
The primitive Romans were infected by the example of the
Etruscans (191) and Greeks: (192) and in the mad abuse of
prosperity and power, every pleasure that is innocent was
deemed insipid; and the Scatinian law, (193) which had been
extorted by an act of violence, was insensibly abolished by
the lapse of time and the multitude of criminals. By this
law, the rape, perhaps the seduction, of an ingenuous youth,
was compensated, as a personal injury, by the poor damages
of ten thousand sesterces, or fourscore pounds; the ravisher
might be slain by the resistance or revenge of chastity; and
I wish to believe, that at Rome, as in Athens, the voluntary
and effeminate deserter of his sex was degraded from the
honors and the rights of a citizen. (194) But the practice of
vice was not discouraged by the severity of opinion: the
indelible stain of manhood was confounded with the more
venial transgressions of fornication and adultery, nor was
the licentious lover exposed to the same dishonor which he
impressed on the male or female partner of his guilt. From
Catullus to Juvenal, (195) the poets accuse and celebrate the
degeneracy of the times; and the reformation of manners was
feebly attempted by the reason and authority of the
civilians till the most virtuous of the Caesars proscribed
the sin against nature as a crime against society. (196)
Rigour of the Christian emperors.
A new spirit of legislation, respectable even in its error,
arose in the empire with the religion of Constantine. (197)
The laws of Moses were received as the divine original of
justice, and the Christian princes adapted their penal
statutes to the degrees of moral and religious turpitude.
Adultery was first declared to be a capital offence: the
frailty of the sexes was assimilated to poison or
assassination, to sorcery or parricide; the same penalties
were inflicted on the passive and active guilt of
paederasty; and all criminals of free or servile condition
were either drowned or beheaded, or cast alive into the
avenging flames. The adulterers were spared by the common
sympathy of mankind; but the lovers of their own sex were
pursued by general and pious indignation: the impure manners
of Greece still prevailed in the cities of Asia, and every
vice was fomented by the celibacy of the monks and clergy.
Justinian relaxed the punishment at least of female
infidelity: the guilty spouse was only condemned to solitude
and penance, and at the end of two years she might be
recalled to the arms of a forgiving husband. But the same
emperor declared himself the implacable enemy of unmanly
lust, and the cruelty of his persecution can scarcely be
excused by the purity of his motives. (198) In defiance of
every principle of justice, he stretched to past as well as
future offences the operations of his edicts, with the
previous allowance of a short respite for confession and
pardon. A painful death was inflicted by the amputation of
the sinful instrument, or the insertion of sharp reeds into
the pores and tubes of most exquisite sensibility; and
Justinian defended the propriety of the execution, since the
criminals would have lost their hands, had they been
convicted of sacrilege. In this state of disgrace and agony,
two bishops, Isaiah of Rhodes and Alexander of Diospolis,
were dragged through the streets of Constantinople, while
their brethren were admonished, by the voice of a crier, to
observe this awful lesson, and not to pollute the sanctity
of their character. Perhaps these prelates were innocent. A
sentence of death and infamy was often founded on the slight
and suspicious evidence of a child or a servant: the guilt
of the green faction, of the rich, and of the enemies of
Theodora, was presumed by the judges, and paederasty became
the crime of those to whom no crime could be imputed. A
French philosopher (199) has dared to remark that whatever is
secret must be doubtful, and that our natural horror of vice
may be abused as an engine of tyranny. But the favorable
persuasion of the same writer, that a legislator may confide
in the taste and reason of mankind, is impeached by the
unwelcome discovery of the antiquity and extent of the
disease. (200)
Judgements of the people.
The free citizens of Athens and Rome enjoyed, in all
criminal cases, the invaluable privilege of being tried by
their country. (201)
1. The administration of justice is the
most ancient office of a prince: it was exercised by the
Roman kings, and abused by Tarquin; who alone, without law
or council, pronounced his arbitrary judgments. The first
consuls succeeded to this regal prerogative; but the sacred
right of appeal soon abolished the jurisdiction of the
magistrates, and all public causes were decided by the
supreme tribunal of the people. But a wild democracy,
superior to the forms, too often disdains the essential
principles, of justice: the pride of despotism was envenomed
by plebeian envy, and the heroes of Athens might sometimes
applaud the happiness of the Persian, whose fate depended on
the caprice of a single tyrant. Some salutary restraints,
imposed by the people or their own passions, were at once
the cause and effect of the gravity and temperance of the
Romans. The right of accusation was confined to the
magistrates. A vote of the thirty five tribes could inflict
a fine; but the cognizance of all capital crimes was
reserved by a fundamental law to the assembly of the
centuries, in which the weight of influence and property was
sure to preponderate. Repeated proclamations and
adjournments were interposed, to allow time for prejudice
and resentment to subside: the whole proceeding might be
annulled by a seasonable omen, or the opposition of a
tribune; and such popular trials were commonly less
formidable to innocence than they were favorable to guilt.
But this union of the judicial and legislative powers left
it doubtful whether the accused party was pardoned or
acquitted; and, in the defence of an illustrious client, the
orators of Rome and Athens address their arguments to the
policy and benevolence, as well as to the justice, of their
sovereign. 2. The task of convening the citizens for the
trial of each offender became more difficult, as the
citizens and the offenders continually multiplied; and the
ready expedient was adopted of delegating the jurisdiction
of the people to the ordinary magistrates, or to
extraordinary inquisitors. In the first ages these
questions were rare and occasional. In the beginning of the
seventh century of Rome they were made perpetual: four
praetors were annually empowered to sit in judgment on the
state offences of treason, extortion, peculation, and
bribery; and Sylla added new praetors and new questions for
those crimes which more directly injure the safety of
individuals. By these inquisitors the trial was prepared
and directed; Select judges. but they could only pronounce the sentence of
the majority of judges, who with some truth, and more
prejudice, have been compared to the English juries. (202) To discharge this important, though burdensome office, an
annual list of ancient and respectable citizens was formed
by the praetor. After many constitutional struggles, they
were chosen in equal numbers from the senate, the equestrian
order, and the people; four hundred and fifty were appointed
for single questions; and the various rolls or decuries of
judges must have contained the names of some thousand
Romans, who represented the judicial authority of the state.
In each particular cause, a sufficient number was drawn from
the urn; their integrity was guarded by an oath; the mode of
ballot secured their independence; the suspicion of
partiality was removed by the mutual challenges of the
accuser and defendant; and the judges of Milo, by the
retrenchment of fifteen on each side, were reduced to
fifty-one voices or tablets, of acquittal, of condemnation,
or of favorable doubt. (203)
3. In his civil jurisdiction,
the praetor of the city was truly a judge, and almost a
legislator; but, as soon as he had prescribed the action of
law, he often referred to a delegate the determination of
the fact. With the increase of legal proceedings, the
tribunal of the centumvirs, in which he presided, acquired
more weight and reputation. But whether he acted alone, or
with the advice of his council, the most absolute powers
might be trusted to a magistrate who was annually chosen by
the votes of the people. The rules and precautions of
freedom have required some explanation; the order of
despotism is simple and inanimate. Before the age of
Justinian, or perhaps of Diocletian, the decuries of Roman
judges had sunk to an empty title: Assessors. the humble advice of the
assessors might be accepted or despised; and in each
tribunal the civil and criminal jurisdiction was
administered by a single magistrate, who was raised and
disgraced by the will of the emperor.
Voluntary exile and death.
A Roman accused of any capital crime might prevent the
sentence of the law by voluntary exile, or death. Till his
guilt had been legally proved, his innocence was presumed,
and his person was free: till the votes of the last century
had been counted and declared, he might peaceably secede to
any of the allied cities of Italy, or Greece, or Asia. (204)
His fame and fortunes were preserved, at least to his
children, by this civil death; and he might still be happy
in every rational and sensual enjoyment, if a mind
accustomed to the ambitious tumult of Rome could support the
uniformity and silence of Rhodes or Athens. A bolder effort
was required to escape from the tyranny of the Caesars; but
this effort was rendered familiar by the maxims of the
stoics, the example of the bravest Romans, and the legal
encouragements of suicide. The bodies of condemned criminals
were exposed to public ignominy, and their children, a more
serious evil, were reduced to poverty by the confiscation of
their fortunes. But, if the victims of Tiberius and Nero
anticipated the decree of the prince or senate, their
courage and despatch were recompensed by the applause of the
public, the decent honors of burial, and the validity of
their testaments. (205) The exquisite avarice and cruelty of
Domitian appear to have deprived the unfortunate of this
last consolation, and it was still denied even by the
clemency of the Antonines. A voluntary death, which, in the
case of a capital offence, intervened between the accusation
and the sentence, was admitted as a confession of guilt, and
the spoils of the deceased were seized by the inhuman claims
of the treasury. (206) Yet the civilians have always
respected the natural right of a citizen to dispose of his
life; and the posthumous disgrace invented by Tarquin, (207)
to check the despair of his subjects, was never revived or
imitated by succeeding tyrants. The powers of this world
have indeed lost their dominion over him who is resolved on
death; and his arm can only be restrained by the religious
apprehension of a future state. Suicides are enumerated by
Virgil among the unfortunate, rather than the guilty; (208)
and the poetical fables of the infernal shades could not
seriously influence the faith or practice of mankind. But
the precepts of the gospel, or the church, have at length
imposed a pious servitude on the minds of Christians, and
condemn them to expect, without a murmur, the last stroke of
disease or the executioner.
Abuses of civil jurisprudence.
The penal statutes form a very small proportion of the
sixty-two books of the Code and Pandects; and in all
judicial proceedings, the life or death of a citizen is
determined with less caution or delay than the most ordinary
question of covenant or inheritance. This singular
distinction, though something may be allowed for the urgent
necessity of defending the peace of society, is derived from
the nature of criminal and civil jurisprudence. Our duties
to the state are simple and uniform: the law by which he is
condemned is inscribed not only on brass or marble, but on
the conscience of the offender, and his guilt is commonly
proved by the testimony of a single fact. But our relations
to each other are various and infinite; our obligations are
created, annulled, and modified, by injuries, benefits, and
promises; and the interpretation of voluntary contracts and
testaments, which are often dictated by fraud or ignorance,
affords a long and laborious exercise to the sagacity of the
judge. The business of life is multiplied by the extent of
commerce and dominion, and the residence of the parties in
the distant provinces of an empire is productive of doubt,
delay, and inevitable appeals from the local to the supreme
magistrate. Justinian, the Greek emperor of Constantinople
and the East, was the legal successor of the Latin shepherd
who had planted a colony on the banks of the Tyber. In a
period of thirteen hundred years, the laws had reluctantly
followed the changes of government and manners; and the
laudable desire of conciliating ancient names with recent
institutions destroyed the harmony, and swelled the
magnitude, of the obscure and irregular system. The laws
which excuse, on any occasions, the ignorance of their
subjects, confess their own imperfections: the civil
jurisprudence, as it was abridged by Justinian, still
continued a mysterious science, and a profitable trade, and
the innate perplexity of the study was involved in tenfold
darkness by the private industry of the practitioners. The
expense of the pursuit sometimes exceeded the value of the
prize, and the fairest rights were abandoned by the poverty
or prudence of the claimants. Such costly justice might tend
to abate the spirit of litigation, but the unequal pressure
serves only to increase the influence of the rich, and to
aggravate the misery of the poor. By these dilatory and
expensive proceedings, the wealthy pleader obtains a more
certain advantage than he could hope from the accidental
corruption of his judge. The experience of an abuse, from
which our own age and country are not perfectly exempt, may
sometimes provoke a generous indignation, and extort the
hasty wish of exchanging our elaborate jurisprudence for the
simple and summary decrees of a Turkish cadhi. Our calmer
reflection will suggest, that such forms and delays are
necessary to guard the person and property of the citizen;
that the discretion of the judge is the first engine of
tyranny; and that the laws of a free people should foresee
and determine every question that may probably arise in the
exercise of power and the transactions of industry. But the
government of Justinian united the evils of liberty and
servitude; and the Romans were oppressed at the same time by
the multiplicity of their laws and the arbitrary will of
their master.
| « NEXT » | « Fall In The EAST » | « Fall In The WEST » | « Decline & Fall » |