Chapter XLIV: Idea Of The Roman Jurisprudence.—Part I

Idea Of The Roman Jurisprudence.—The Laws Of The Kings—The Twelve 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:—I. Rights Of Persons.—II. Rights Of Things.—III. Private Injuries And Actions.—IV. Crimes And Punishments.

Note: In the notes to this important chapter, which is received
as the text-book on Civil Law in some of the foreign
universities, I have consulted,

I. the newly-discovered Institutes of Gaius, (Gaii Institutiones,
ed. Goeschen, Berlin, 1824,) with some other fragments of the
Roman law, (Codicis Theodosiani Fragmenta inedita, ab Amadeo
Peyron. Turin, 1824.)

II. The History of the Roman Law, by Professor Hugo, in the
French translation of M. Jourdan. Paris, 1825.

III. Savigny, Geschichte des Romischen Rechts im Mittelalter, 6
bande, Heidelberg, 1815.

IV. Walther, Romische Rechts-Geschichte, Bonn. 1834. But I am
particularly indebted to an edition of the French translation of
this chapter, with additional notes, by one of the most learned
civilians of Europe, Professor Warnkonig, published at Liege,
1821. I have inserted almost the whole of these notes, which are
distinguished by the letter W.—M. 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.

1 (return) [ The civilians of the darker ages have established an
absurd and incomprehensible mode of quotation, which is supported
by authority and custom. In their references to the Code, the
Pandects, and the Institutes, they mention the number, not of the
book, but only of the law; and content themselves with reciting
the first words of the title to which it belongs; and of these
titles there are more than a thousand. Ludewig (Vit. Justiniani,
p. 268) wishes to shake off this pendantic yoke; and I have dared
to adopt the simple and rational method of numbering the book,
the title, and the law. Note: The example of Gibbon has been
followed by M Hugo and other civilians.—M]

2 (return) [ Germany, Bohemia, Hungary, Poland, and Scotland,
have received them as common law or reason; in France, Italy,
&c., they possess a direct or indirect influence; and they were
respected in England, from Stephen to Edward I. our national
Justinian, (Duck. de Usu et Auctoritate Juris Civilis, l. ii. c.
1, 8—15. Heineccius, Hist. Juris Germanici, c. 3, 4, No. 55-124,
and the legal historians of each country.) * Note: Although the
restoration of the Roman law, introduced by the revival of this
study in Italy, is one of the most important branches of history,
it had been treated but imperfectly when Gibbon wrote his work.
That of Arthur Duck is but an insignificant performance. But the
researches of the learned have thrown much light upon the matter.
The Sarti, the Tiraboschi, the Fantuzzi, the Savioli, had made
some very interesting inquiries; but it was reserved for M. de
Savigny, in a work entitled “The History of the Roman Law during
the Middle Ages,” to cast the strongest right on this part of
history. He demonstrates incontestably the preservation of the
Roman law from Justinian to the time of the Glossators, who by
their indefatigable zeal, propagated the study of the Roman
jurisprudence in all the countries of Europe. It is much to be
desired that the author should continue this interesting work,
and that the learned should engage in the inquiry in what manner
the Roman law introduced itself into their respective countries,
and the authority which it progressively acquired. For Belgium,
there exists, on this subject, (proposed by the Academy of
Brussels in 1781,) a Collection of Memoirs, printed at Brussels
in 4to., 1783, among which should be distinguished those of M. de
Berg. M. Berriat Saint Prix has given us hopes of the speedy
appearance of a work in which he will discuss this question,
especially in relation to France. M. Spangenberg, in his
Introduction to the Study of the Corpus Juris Civilis Hanover,
1817, 1 vol. 8vo. p. 86, 116, gives us a general sketch of the
history of the Roman law in different parts of Europe. We cannot
avoid mentioning an elementary work by M. Hugo, in which he
treats of the History of the Roman Law from Justinian to the
present Time, 2d edit. Berlin 1818 W.]

3 (return) [ Francis Hottoman, a learned and acute lawyer of the
xvith century, wished to mortify Cujacius, and to please the
Chancellor de l’Hopital. His Anti-Tribonianus (which I have never
been able to procure) was published in French in 1609; and his
sect was propagated in Germany, (Heineccius, Op. tom. iii.
sylloge iii. p. 171—183.) * Note: Though there have always been
many detractors of the Roman law, no sect of Anti-Tribonians has
ever existed under that name, as Gibbon seems to suppose.—W.]

4 (return) [ At the head of these guides I shall respectfully
place the learned and perspicuous Heineccius, a German professor,
who died at Halle in the year 1741, (see his Eloge in the
Nouvelle Bibliotheque Germanique, tom. ii. p. 51—64.) His ample
works have been collected in eight volumes in 4to. Geneva,
1743-1748. The treatises which I have separately used are, 1.
Historia Juris Romani et Germanici, Lugd. Batav. 1740, in 8 vo.
2. Syntagma Antiquitatum Romanam Jurisprudentiam illustrantium, 2
vols. in 8 vo. Traject. ad Rhenum. 3. Elementa Juris Civilis
secundum Ordinem Institutionum, Lugd. Bat. 1751, in 8 vo. 4.
Elementa J. C. secundum Ordinem Pandectarum Traject. 1772, in
8vo. 2 vols. * Note: Our author, who was not a lawyer, was
necessarily obliged to content himself with following the
opinions of those writers who were then of the greatest
authority; but as Heineccius, notwithstanding his high reputation
for the study of the Roman law, knew nothing of the subject on
which he treated, but what he had learned from the compilations
of various authors, it happened that, in following the sometimes
rash opinions of these guides, Gibbon has fallen into many
errors, which we shall endeavor in succession to correct. The
work of Bach on the History of the Roman Jurisprudence, with
which Gibbon was not acquainted, is far superior to that of
Heineccius and since that time we have new obligations to the
modern historic civilians, whose indefatigable researches have
greatly enlarged the sphere of our knowledge in this important
branch of history. We want a pen like that of Gibbon to give to
the more accurate notions which we have acquired since his time,
the brilliancy, the vigor, and the animation which Gibbon has
bestowed on the opinions of Heineccius and his contemporaries.—W]

5 (return) [ Our original text is a fragment de Origine Juris
(Pandect. l. i. tit. ii.) of Pomponius, a Roman lawyer, who lived
under the Antonines, (Heinecc. tom. iii. syl. iii. p. 66—126.) It
has been abridged, and probably corrupted, by Tribonian, and
since restored by Bynkershoek (Opp. tom. i. p. 279—304.)]

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

6 (return) [ The constitutional history of the kings of Rome may
be studied in the first book of Livy, and more copiously in
Dionysius Halicarnassensis, (l. li. p. 80—96, 119—130, l. iv. p.
198—220,) who sometimes betrays the character of a rhetorician
and a Greek. * Note: M. Warnkonig refers to the work of Beaufort,
on the Uncertainty of the Five First Ages of the Roman History,
with which Gibbon was probably acquainted, to Niebuhr, and to the
less known volume of Wachsmuth, “Aeltere Geschichte des Rom.
Staats.” To these I would add A. W. Schlegel’s Review of Niebuhr,
and my friend Dr. Arnold’s recently published volume, of which
the chapter on the Law of the XII. Tables appears to me one of
the most valuable, if not the most valuable, chapter.—M.]

7 (return) [ This threefold division of the law was applied to
the three Roman kings by Justus Lipsius, (Opp. tom. iv. p. 279;)
is adopted by Gravina, (Origines Juris Civilis, p. 28, edit.
Lips. 1737:) and is reluctantly admitted by Mascou, his German
editor. * Note: Whoever is acquainted with the real notions of
the Romans on the jus naturale, gentium et civile, cannot but
disapprove of this explanation which has no relation to them, and
might be taken for a pleasantry. It is certainly unnecessary to
increase the confusion which already prevails among modern
writers on the true sense of these ideas. Hugo.—W]

8 (return) [ The most ancient Code or Digest was styled Jus
Papirianum, from the first compiler, Papirius, who flourished
somewhat before or after the Regifugium, (Pandect. l. i. tit.
ii.) The best judicial critics, even Bynkershoek (tom. i. p. 284,
285) and Heineccius, (Hist. J. C. R. l. i. c. 16, 17, and Opp.
tom. iii. sylloge iv. p. 1—8,) give credit to this tale of
Pomponius, without sufficiently adverting to the value and rarity
of such a monument of the third century, of the illiterate city.
I much suspect that the Caius Papirius, the Pontifex Maximus, who
revived the laws of Numa (Dionys. Hal. l. iii. p. 171) left only
an oral tradition; and that the Jus Papirianum of Granius Flaccus
(Pandect. l. L. tit. xvi. leg. 144) was not a commentary, but an
original work, compiled in the time of Caesar, (Censorin. de Die
Natali, l. iii. p. 13, Duker de Latinitate J. C. p. 154.) Note:
Niebuhr considers the Jus Papirianum, adduced by Verrius Fiaccus,
to be of undoubted authenticity. Rom. Geschichte, l. 257.—M.
Compare this with the work of M. Hugo.—W.]

9 (return) [ A pompous, though feeble attempt to restore the
original, is made in the Histoire de la Jurisprudence Romaine of
Terasson, p. 22—72, Paris, 1750, in folio; a work of more promise
than performance.]

10 (return) [ In the year 1444, seven or eight tables of brass
were dug up between Cortona and Gubio. A part of these (for the
rest is Etruscan) represents the primitive state of the Pelasgic
letters and language, which are ascribed by Herodotus to that
district of Italy, (l. i. c. 56, 57, 58;) though this difficult
passage may be explained of a Crestona in Thrace, (Notes de
Larcher, tom. i. p. 256—261.) The savage dialect of the Eugubine
tables has exercised, and may still elude, the divination of
criticism; but the root is undoubtedly Latin, of the same age and
character as the Saliare Carmen, which, in the time of Horace,
none could understand. The Roman idiom, by an infusion of Doric
and Aeolic Greek, was gradually ripened into the style of the
xii. tables, of the Duillian column, of Ennius, of Terence, and
of Cicero, (Gruter. Inscript. tom. i. p. cxlii. Scipion Maffei,
Istoria Diplomatica, p. 241—258. Bibliotheque Italique, tom. iii.
p. 30—41, 174—205. tom. xiv. p. 1—52.) * Note: The Eugubine
Tables have exercised the ingenuity of the Italian and German
critics; it seems admitted (O. Muller, die Etrusker, ii. 313)
that they are Tuscan. See the works of Lanzi, Passeri, Dempster,
and O. Muller.—M]

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. 1211 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.

11 (return) [ Compare Livy (l. iii. c. 31—59) with Dionysius
Halicarnassensis, (l. x. p. 644—xi. p. 691.) How concise and
animated is the Roman—how prolix and lifeless the Greek! Yet he
has admirably judged the masters, and defined the rules, of
historical composition.]

12 (return) [ From the historians, Heineccius (Hist. J. R. l. i.
No. 26) maintains that the twelve tables were of brass—aereas; in
the text of Pomponius we read eboreas; for which Scaliger has
substituted roboreas, (Bynkershoek, p. 286.) Wood, brass, and
ivory, might be successively employed. Note: Compare Niebuhr,
vol. ii. p. 349, &c.—M.]

1211 (return) [ Compare Niebuhr, 355, note 720.—M. It is a most
important question whether the twelve tables in fact include laws
imported from Greece. The negative opinion maintained by our
author, is now almost universally adopted, particularly by Mm.
Niebuhr, Hugo, and others. See my Institutiones Juris Romani
privati Leodii, 1819, p. 311, 312.—W. Dr. Arnold, p. 255, seems
to incline to the opposite opinion. Compare some just and
sensible observations in the Appendix to Mr. Travers Twiss’s
Epitome of Niebuhr, p. 347, Oxford, 1836.—M.]

13 (return) [ His exile is mentioned by Cicero, (Tusculan.
Quaestion. v. 36; his statue by Pliny, (Hist. Nat. xxxiv. 11.)
The letter, dream, and prophecy of Heraclitus, are alike
spurious, (Epistolae Graec. Divers. p. 337.) * Note: Compare
Niebuhr, ii. 209.—M. See the Mem de l’Academ. des Inscript. xxii.
p. 48. It would be difficult to disprove, that a certain
Hermodorus had some share in framing the Laws of the Twelve
Tables. Pomponius even says that this Hermodorus was the author
of the last two tables. Pliny calls him the Interpreter of the
Decemvirs, which may lead us to suppose that he labored with them
in drawing up that law. But it is astonishing that in his
Dissertation, (De Hermodoro vero XII. Tabularum Auctore, Annales
Academiae Groninganae anni 1817, 1818,) M. Gratama has ventured
to advance two propositions entirely devoid of proof: “Decem
priores tabulas ab ipsis Romanis non esse profectas, tota
confirma Decemviratus Historia,” et “Hermodorum legum
decemviralium ceri nominis auctorem esse, qui eas composuerit
suis ordinibus, disposuerit, suaque fecerit auctoritate, ut a
decemviris reciperentur.” This truly was an age in which the
Roman Patricians would allow their laws to be dictated by a
foreign Exile! Mr. Gratama does not attempt to prove the
authenticity of the supposititious letter of Heraclitus. He
contents himself with expressing his astonishment that M. Bonamy
(as well as Gibbon) will be receive it as genuine.—W.]

14 (return) [ This intricate subject of the Sicilian and Roman
money, is ably discussed by Dr. Bentley, (Dissertation on the
Epistles of Phalaris, p. 427—479,) whose powers in this
controversy were called forth by honor and resentment.]

15 (return) [ The Romans, or their allies, sailed as far as the
fair promontory of Africa, (Polyb. l. iii. p. 177, edit.
Casaubon, in folio.) Their voyages to Cumae, &c., are noticed by
Livy and Dionysius.]

16 (return) [ This circumstance would alone prove the antiquity
of Charondas, the legislator of Rhegium and Catana, who, by a
strange error of Diodorus Siculus (tom. i. l. xii. p. 485—492) is
celebrated long afterwards as the author of the policy of
Thurium.]

17 (return) [ Zaleucus, whose existence has been rashly attacked,
had the merit and glory of converting a band of outlaws (the
Locrians) into the most virtuous and orderly of the Greek
republics. (See two Memoirs of the Baron de St. Croix, sur la
Legislation de la Grande Grece Mem. de l’Academie, tom. xlii. p.
276—333.) But the laws of Zaleucus and Charondas, which imposed
on Diodorus and Stobaeus, are the spurious composition of a
Pythagorean sophist, whose fraud has been detected by the
critical sagacity of Bentley, p. 335—377.]

18 (return) [ I seize the opportunity of tracing the progress of
this national intercourse 1. Herodotus and Thucydides (A. U. C.
300—350) appear ignorant of the name and existence of Rome,
(Joseph. contra Appion tom. ii. l. i. c. 12, p. 444, edit.
Havercamp.) 2. Theopompus (A. U. C. 400, Plin. iii. 9) mentions
the invasion of the Gauls, which is noticed in looser terms by
Heraclides Ponticus, (Plutarch in Camillo, p. 292, edit. H.
Stephan.) 3. The real or fabulous embassy of the Romans to
Alexander (A. U. C. 430) is attested by Clitarchus, (Plin. iii.
9,) by Aristus and Asclepiades, (Arrian. l. vii. p. 294, 295,)
and by Memnon of Heraclea, (apud Photium, cod. ccxxiv. p. 725,)
though tacitly denied by Livy. 4. Theophrastus (A. U. C. 440)
primus externorum aliqua de Romanis diligentius scripsit, (Plin.
iii. 9.) 5. Lycophron (A. U. C. 480—500) scattered the first seed
of a Trojan colony and the fable of the Aeneid, (Cassandra,
1226—1280.) A bold prediction before the end of the first Punic
war! * Note: Compare Niebuhr throughout. Niebuhr has written a
dissertation (Kleine Schriften, i. p. 438,) arguing from this
prediction, and on the other conclusive grounds, that the
Lycophron, the author of the Cassandra, is not the Alexandrian
poet. He had been anticipated in this sagacious criticism, as he
afterwards discovered, by a writer of no less distinction than
Charles James Fox.—Letters to Wakefield. And likewise by the
author of the extraordinary translation of this poem, that most
promising scholar, Lord Royston. See the Remains of Lord Royston,
by the Rev. Henry Pepys, London, 1838.]

19 (return) [ The tenth table, de modo sepulturae, was borrowed
from Solon, (Cicero de Legibus, ii. 23—26:) the furtem per lancem
et licium conceptum, is derived by Heineccius from the manners of
Athens, (Antiquitat. Rom. tom. ii. p. 167—175.) The right of
killing a nocturnal thief was declared by Moses, Solon, and the
Decemvirs, (Exodus xxii. 3. Demosthenes contra Timocratem, tom.
i. p. 736, edit. Reiske. Macrob. Saturnalia, l. i. c. 4. Collatio
Legum Mosaicarum et Romanatum, tit, vii. No. i. p. 218, edit.
Cannegieter.) *Note: Are not the same points of similarity
discovered in the legislation of all actions in the infancy of
their civilization?—W.]