Part 15

The laws of the first six kings of Rome, called the _Leges Regiæ_, chiefly related to sacred subjects,—regulations of police,—divisions of the different orders in the state,—and privileges of the people. Tarquinius Superbus having laid a plan for the establishment of despotism at Rome, attempted to abolish every law of his predecessors which imposed control on the royal prerogative. About the time of his expulsion(294), the Senate and people, believing that the disregard of the laws was occasioned by their never having been reduced in writing, determined to have them assembled and recorded in one volume; and this task was intrusted by them to Sextus Papyrius, a patrician. Papyrius accordingly collected, with great assiduity, all the laws of the monarchs who had governed Rome previously to the time of Tarquin. This collection, which is sometimes called the _Leges Regiæ_, and sometimes the Papyrian Code, did not obtain that confirmation and permanence which might have been expected. Many of the _Leges Regiæ_ were the result of momentary emergencies, and inapplicable to future circumstances. Being the ordinances, too, of a detested race, and being in some respects but ill adapted to the genius and temper of a republican government, a great number of them soon fell into desuetude(295). The new laws promulgated immediately after the expulsion of the kings, related more to those constitutional modifications which were rendered necessary by so important a revolution, than to the civil rights of the citizen. In consequence of the dissensions of the patricians and plebeians, every _Senatusconsultum_ proceeding from the deliberations of the Senate was negatived by the _veto_ of the Tribunes, while the Senate, in return, disowned the authority of the _Plebiscita_, and denied the right of the Tribunes to propose laws. There was thus a sort of legal interregnum at Rome; at least, there were no fixed rules to which all classes were equally subjected: and the great body of the people were too often the victims of the pride of the patricians and tyranny of the consular government. In this situation, C. Terentius Arsa brought forward the law known by the name of _Terentilla_, of which the object was the election by the people of ten persons, who should compose and arrange a body of laws for the administration of public affairs, as well as decision of the civil rights of individuals according to established rules. The Senate, who maintained that the dispensation of justice was solely vested in the supreme magistrates, contrived, for five years, to postpone execution of this salutary measure; but it was at length agreed, that, as a preparatory step, and before the creation of the Decemvirs, who were to form this code, three deputies should be sent to Greece, and the Greek towns of Italy, to select such enactments as they might consider best adapted to the manners and customs of the Roman people.

The delegates, who departed on this embassy towards the close of the year 300, were occupied two years in their important mission. From what cities of Greece, or Magna Græcia, they chiefly borrowed their laws, has been a topic of much discussion, and seems to be still involved in much uncertainty(296); though Athens is most usually considered as having been the great fountain of their legislation.

On the return of the deputies to Rome, the office of Consul was suppressed, and ten magistrates, called Decemvirs, among whom these deputies were included, were immediately created. To them was confided the care of digesting the prodigious mass of laws which had been brought from Greece. This task they accomplished with the aid of Hermodorus, an exile of Ephesus, who then happened to be at Rome, and acted as their interpreter. But although the importation from Greece formed the chief part of the twelve tables, it cannot be supposed that the ancient laws of Rome were entirely superseded. Some of the _Leges Regiæ_, which had no reference to monarchical government, as the laws of Romulus, concerning the _Patria potestas_, those concerning parricides, the removal of landmarks, and insolvent debtors, had, by tacit consent, passed into consuetudinary law; and all those which were still in observance were incorporated in the Decemviral Code; in the same manner as the institutions of the heroic ages of Greece formed a part of the laws of Solon and Lycurgus.

Before a year had elapsed from the date of their creation, the Decemvirs had prepared ten books of laws; which, being engraved on wooden or ivory tables, were presented to the people, and received the sanction of the Senate, and ratification of the Comitia Centuriata. Two supplementary tables were soon afterwards added, in consequence of some omissions which were observed and pointed out to the Decemvirs. In all these tables the laws were briefly expressed. The first eight related to matters of private right, the ninth to those of public, and the tenth to those of religious concern. These ten tables established very equitable rules for all different ranks, without distinction; but in the two supplemental tables some invidious distinctions were introduced, and many exclusive privileges conferred on the patricians.

On the whole, the Decemvirs appear to have been very well versed in the science of legislation. Those who, like Cicero(297) and Tacitus, possessed the Twelve Tables complete, and who were the most competent judges of how far they were adapted to the circumstances and manners of the people, have highly commended the wisdom of these laws. Modern detractors have chiefly objected to the sanguinary punishments they inflicted, the principles of the law of retaliation which they recognized, and the barbarous privileges permitted to creditors on the persons of their debtors. The severer enactments, however, of the Twelve Tables, were evidently never put in force, or so soon became obsolete, that the Roman laws were at length esteemed remarkable for the mildness of their punishments—the penalties of scourging, or death, being scarcely in any case inflicted on a Roman citizen.

The tables on which the Decemviral Code had been inscribed, were destroyed by the Gauls at the sack of the city; but such pains were taken in recovering copies, or making them out from recollection, that the laws themselves were almost completely re-established.

It might reasonably have been expected that a system of jurisprudence, carefully extracted from the whole legislative wisdom of Italy and Greece, should have restored in the commonwealth that good order and security which had been overthrown by the uncertainty of the laws, and the disputes of the patricians and plebeians. But the event did not justify the well-founded expectation. The ambition and lawless passions of the chief Decemvir had rendered it necessary for him and his colleagues to abdicate their authority before they had settled with sufficient precision how their enactments were to be put in practice or enforced. It thus became essential to introduce certain _formulæ_, called _Legis Actiones_, in order that the mode of procedure might not remain arbitrary and uncertain. These, consisting chiefly of certain symbolical gestures, adapted to a legal claim or defence, were prepared by Claudius Cœcus about the middle of the fifth century of Rome, but were intended to be kept private among the pontiffs and patrician Jurisconsults, that the people might not have the benefit of the law without their assistance. Cl. Flavius, however, a secretary of Claudius, having access to these formularies, transcribed and communicated them to the people about the middle of the fifth century of Rome. From this circumstance they were called the _Jus civile Flavianum_. This discovery was so disagreeable to the patricians, that they devised new legal forms, which they kept secret with still more care than the others. But in 553, Sextus Ælius Catus divulged them again, and in consequence, these last prescripts obtained the name of _Jus Ælium_, which may be regarded as the last part and completion of the Decemviral laws; and it continued to be employed as the form of process during the whole remaining period of the existence of the commonwealth.

As long as the republic survived, the Twelve Tables formed the foundation of the Roman law, though they were interpreted and enlarged by such new enactments as the circumstances of the state demanded(298). Thus the _Lex Aquilia_ and _Alinia_ were mere modifications of different heads of the twelve tables. Most of the new laws were introduced in consequence of the increase of empire and luxury, and the conflicting interests of the various orders in the state. Laws, properly so called, were proposed by a superior magistrate, as the Consul, Dictator, or Prætor, with consent of the Senate; they were passed by the whole body of the people, patricians and plebeians, assembled in the Comitia Centuriata, and bore ever after the name of the proposer.

The _Plebiscita_ were enacted by the plebeians in the Comitia Tributa, apart from the patricians, and independently of the sanction of the Senate, at the _rogation_ of their own Tribunes, instead of one of the superior magistrates. The patricians generally resisted these decrees, as they were chiefly directed against the authority of the Senate, and the privileges of the higher orders of the state. But, by the _Lex Horatia_, the same weight and authority were given to them as to laws properly so termed, and thenceforth they differed only in name, and the manner in which they were enacted.

A _Senatusconsultum_ was an ordinance of the Senate on those points concerning which it possessed exclusive authority; but rather referred to matters of state, as the distribution of provinces, the application of public money, and the like, than to the ordinary administration of justice.

The patricians, being deprived by the Twelve Tables of the privilege of arbitrarily pronouncing decisions, as best suited their interests; and being frustrated in their miserable attempts to maintain an undue advantage in matters of form, by secreting the rules of procedure held in courts of justice, they had now reserved to them only the power of interpreting to others the scope and spirit of the laws. Till the age, at least, of Augustus, the civil law was completely unconnected and dissipated; and no systematic, accessible, or authoritative treatise on the subject, appeared during the existence of the republic(299). The laws of the Twelve Tables were extremely concise and elliptical; and it seems highly probable that they were written in this style, not for the sake of perspicuity, but to leave all that required to be supplied or interpreted in the power of the Patricians(300). The changes, too, in the customs and language of the Romans, rendered the style of the Twelve Tables less familiar to each succeeding generation; and the ambiguous passages were but imperfectly explained by the study of legal antiquarians. It was the custom, likewise, for each successive Prætor to publish an edict, announcing the manner in which justice was to be distributed by him—the rules which he proposed to follow in the decision of doubtful cases; and the degree of relief which his equity would afford from the precise rigour of ancient statutes. This annual alteration in forms, and sometimes even in the principles of law, introduced a confusion, which persons engrossed with other occupations could not unravel. The obscurity of old laws, and fluctuating jurisdiction of the Prætors, gave rise to that class of men called Jurisconsults, whose business it was to explain legal difficulties, and reconcile statutory contradictions. It was the relation of patron and client, which was coeval almost with the city itself, and was invested with a sacred, inviolable character, that gave weight to the _dicta_ of those who, in some measure, came in place of the ancient patrons, and usually belonged to the patrician order.—“On the public days of market or assembly,” says Gibbon, “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 honours 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 incidents of judicial proceedings, were the ordinary subject of these consultations; and the verbal or written opinions of the jurisconsults were 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(301).” Though the judges and prætors were not absolutely obliged, till the time of the emperors, to follow the recorded opinions of the Jurisconsults, they possessed during the existence of the republic a preponderating weight and authority. The province of legislation was thus gradually invaded by these expounders of ancient statutes, till at length their recorded opinions, the _Responsa Prudentum_, became so numerous, and of such authority, that they formed the greatest part of the system of Roman jurisprudence, whence they were styled by Cicero, in his oration for Cæcina, _Jus Civile_.

It is perfectly evident, however, that the civil law was neither much studied nor known by the _orators_ of the Senate, and Forum. Cicero, in his treatise _De Oratore_, informs us, that Ser. Galba, the first speaker of his day, was ignorant of law, inexperienced in civil rights, and uncertain as to the institutions of his ancestors. In his _Brutus_ he says nearly the same thing of Antony and Sulpicius, who were the two greatest orators of their age, and who, he declares, knew nothing of public, private, or civil law. Antony in particular, always expressed a contempt for the study of the civil law(302). Accordingly, in the dialogue _De Oratore_, he is made to say, “I never studied the civil law, nor have I been sensible of any loss from my ignorance of it in those causes which I was capable of managing in our courts(303).” In the same dialogue, Scævola says, “The present age is totally ignorant of the laws of the Twelve Tables, except you, Crassus, who, led by curiosity, rather than from its being any province annexed to eloquence, studied civil law under me.” In his oration for Muræna, Cicero talks lightly of the study of the civil law, and treats his opponent with scorn on account of his knowledge of its words of style and forms of procedure(304). With exception, then, of Crassus, and of Scævola, who was rather a jurisconsult than a speaker, the orators of the age of Cicero, as well as those who preceded it, were uninstructed in law, and considered it as no part of their duty to render themselves masters, either of the general principles of jurisprudence, or the municipal institutions of the state. Crassus, indeed, expresses his opinion, that it is impossible for an orator to do justice to his client without some knowledge of law, particularly in questions tried before the Centumviri, who had cognizance of points with regard to egress and regress in property, the interests of minors, and alterations in the course of rivers; and he mentions several cases, some of a criminal nature, which had lately occurred at Rome, where the question hinged entirely on the civil law, and required constant reference to precedents and authorities. Antony, however, explains how all this may be managed. A speaker, for example, ignorant of the mode of drawing up an agreement, and unacquainted with the forms of a contract, might defend the rights of a woman who has been contracted in marriage, because there were persons who brought everything to the orator or patron, ready prepared,—presenting him with a brief, or memorial, not only on matters of fact, but on the decrees of the Senate, the precedents and the opinions of the jurisconsults. It also appears that there were solicitors, or professors of civil law, whom the orators consulted on any point concerning which they wished to be instructed, and the knowledge of which might be necessary previous to their appearance in the Forum. In this situation, the harangue of the orator was more frequently an appeal to the equity, common sense, or feelings of the judge, than to the laws of his country. Now, where a pleader addresses himself to the equity of his judges, he has much more occasion, and also much more scope, to display his eloquence, than where he must draw his arguments from strict law, statutes, and precedents. In the former case, many circumstances must be taken into account; many personal considerations regarded; and even favour and inclination, which it belongs to the orator to conciliate, by his art and eloquence, may be disguised under the appearance of equity. Accordingly, Cicero, while speaking in his own person, only says, that the science of law and civil rights should not be neglected; but he does not seem to consider it as essential to the orator of the Forum, while he enlarges on the necessity of elegance of language, the erudition of the scholar, a ready and popular wit, and a power of moving the passions(305).

That these were the arts to which the Roman orators chiefly trusted for success in the causes of their clients, is apparent from the remains of their discourses, and from what is said of the mode of pleading in the rhetorical treatises of Cicero. “Pontius,” says Antony, in the dialogue so often quoted, “had a son, who served in the war with the Cimbri, and whom he had destined to be his heir; but his father, believing a false report which was spread of his death, made a will in favour of another child. The soldier returned after the decease of his parent; and, had you been employed to defend his cause, you would not have discussed the legal doctrine as to the priority or validity of testaments; you would have raised his father from the grave, made him embrace his child, and recommend him, with many tears, to the protection of the Centumviri.”

Antony, speaking of one of his own most celebrated orations, says, that his whole address consisted, 1st, in moving the passions; 2d, in recommending _himself_; and that it was thus, and not by convincing the understanding of the judges, that he baffled the impeachment against his clients(306). Valerius Maximus has supplied, in his eighth book, many examples of unexpected and unmerited acquittals, as well as condemnations, from bursts of compassion and theatrical incidents. The wonderful influence, too, of a ready and popular wit in the management of causes, is apparent from the instances given in the second book _De Oratore_ of the effects it had produced in the Forum. The jests which are there recorded, though not very excellent, may be regarded as the finest flowers of wit of the Roman bar. Sometimes they were directed against the opposite party, his patron, or witnesses; and, if sufficiently impudent, seldom failed of effect.

That the principles and precepts of the civil law were so little studied by the Roman orators, and hardly ever alluded to in their harangues, while, on the other hand, the arts of persuasion, and wit, and excitement of the passions, were all-powerful, and were the great engines of legal discussion, must be attributed to the constitution of the courts of law, and the nature of the judicial procedure, which, though very imperfect for the administration of justice, were well adapted to promote and exercise the highest powers of eloquence. It was the forms of procedure—the description of the courts before which questions were tried—and the nature of these questions themselves(307)—that gave to Roman oratory such dazzling splendour, and surrounded it with a glory, which can never shine on the efforts of rhetoric in a better-regulated community, and under a more sober dispensation of justice.

The great exhibitions of eloquence were, 1st, In the civil and criminal causes tried before the Prætor, or judges appointed under his eye. 2d, The discussions on laws proposed in the assemblies of the people. 3d, The deliberations of the Senate.

The Prætor sat in the Forum, the name given to the great square situated between Mount Palatine and the Capitol, and there administered justice. Sometimes he heard causes in the Basilicæ, or halls which were built around the Forum; but at other times the court of the Prætor was held in the area of the Forum, on which a tribunal was hastily erected, and a certain space for the patron, client, and witnesses, was railed off, and protected from the encroachment of surrounding spectators. This space was slightly covered above for the occasion with canvass, but being exposed to the air on all sides, the court was an open one, in the strictest sense of the term(308).

From the time of the first Punic war there were two Prætors, to whom the cognizance of _civil_ suits was committed,—the _Prætor urbanus_ and _Prætor peregrinus_. The former tried the causes of citizens according to the Roman laws; the latter judged the cases of allies and strangers by the principles of natural equity; but as judicial business multiplied, the number of Prætors was increased to six. The Prætor was the chief judge in all questions that did not fall under the immediate cognizance of the assemblies of the people or the Senate. Every action, therefore, came, in the first instance, before the Prætor; but he decided only in civil suits of importance: and if the cause was not of sufficient magnitude for the immediate investigation of his tribunal, or hinged entirely on matters of fact, he appointed one or more persons to judge of it. These were chosen from a list of _judices selecti_, which was made up from the three orders of senators, knights, and people. If but one person was appointed, he was properly called a _judex_, or _arbiter_. The _judex_ determined only such cases as were easy, or of small importance; and he was bound to proceed according to an express law, or a certain form prescribed to him by the Prætor. The _arbiter_ decided in questions of equity which were not sufficiently defined by law, and his powers were not so restricted by the Prætor as those of the ordinary _judex_. When more persons than one were nominated by the Prætor, they were termed _Recuperatores_, and they settled points of law or equity requiring much deliberation. Certain cases, particularly those relating to testaments or successions, were usually remitted by the Prætor to the _Centumviri_, who were 105 persons, chosen equally from the thirty-five tribes. The Prætor, before sending a case to any of those, whom I may call by the general name of judges, though, in fact, they more nearly resembled our jury, made up a _formula_, as it was called, or issue on which they were to decide; as, for example, “If it be proved that the field is in possession of Servilius, give sentence against Catulus, unless he produce a testament, from which it shall appear to belong to him.”