Chapter VI: Roman Jurisprudence (2)

The praetor, a magistrate next in dignity to the consuls, acted as supreme judge of the civil courts, assisted by a council of jurisconsults to determine questions in law. At first one praetor was sufficient, but as the limits of the city and empire extended, he was joined by a colleague. After the conquest of Sicily, Sardinia, and the two Spains, new praetors were appointed to administer justice in the provinces. The praetor held his court in the comitium, wore a robe bordered with purple, sat in a curule chair, and was attended by lictors.

[Sidenote: Other judges.]

The praetor delegated his power to judges, called Judex, Arbiter, and Recuperatores. When parties were at issue about facts, it was the custom for the praetor to fix the question of law upon which the action turned, and then to remit to a delegate to inquire into the facts and pronounce judgment according to them. In the time of Augustus there were four thousand judices, who were merely private citizens, generally senators or men of consideration. The judex was invested by the magistrate with a judicial commission for a single case only. After being sworn to duty, he received from the praetor a formula containing a summary of all the points under litigation, from which he was not allowed to depart. He was required not merely to investigate facts, but to give sentence. And as law questions were more or less mixed up with the case, he was allowed to consult one or more jurisconsults. If the case was beyond his power to decide, he could decline to give judgment. The arbiter, like the judex, received a formula from the praetor, and seemed to have more extensive power. The recuperatores heard and determined cases, but the number appointed for each case was usually three or five.

[Sidenote: The centumvirs.]

The centumvirs constituted a permanent tribunal composed of members annually elected, in equal numbers, from each tribe, and this tribunal was presided over by the praetor, and divided into four chambers, which, under the republic, was placed under the ancient quaestors. The centumvirs decided questions of property, embracing a wide range of subjects. [Footnote: _Cicero de Orat_., i. 38.] The Romans had no class of men like the judges of modern times. The superior magistrates were changed annually, and political duties were mixed with judicial. The evil was partially remedied by the institution of legal assessors, selected from the most learned jurisconsults. Under the empire, the praetors were greatly increased. Under Tiberius, there were sixteen who administered justice, beside the consuls, six ediles, and ten tribunes of the people. The emperor himself became the supreme judge, and he was assisted in the discharge of his judicial duties by a council composed of the consuls, a magistrate of each grade, and fifteen senators. The Praetorian prefects, although, at first, their duties were purely military, finally discharged important judicial functions. The prefect of the city, in the time of the emperors, was a great judicial personage, who heard appeals from the praetors themselves.

[Sidenote: Witnesses.]

In all cases brought before the courts, the burden of proof was with the party asserting an affirmative fact. Proof by writing was generally considered most certain, but proof by witnesses was also admitted. Pupils, lunatics, infamous persons, interested parties, near relations, and slaves, could not bear evidence, or any person who had a strong enmity against the party. The witnesses were required to give their testimony on oath. Two witnesses were enough to prove a fact, in most instances. When witnesses gave conflicting testimony, the judge regarded those who were worthy of credit rather than numbers. In the English courts, the custom used to be as with the Romans, of refusing testimony from those who were interested, but this has been removed. On the failure of regular proof, the Roman law allowed a party to refer the facts in a civil action to the oath of his adversary.

[Sidenote: Condition of debtors.]

Under the empire every judgment was reduced to writing and signed by the judge, and then entered upon a register. [Footnote: C. vii. 45, 12.] After the sentence, the debtor was allowed thirty days for the payment of his debt, after which he was assigned over to the creditor and kept in chains for sixty days, during which he was publicly exposed for three market days, and if no one released him by paying the debt, he could be sold as a slave. Justinian extended the period to four months for the payment of a judgment debt, after which, if the debt was not paid, the debtor could be imprisoned, but not, as formerly, in the creditor's house. At first the goods of the debtor were sold in favor of any one who offered to pay the largest dividend, but in process of time, the goods of the debtor were sold in detail, and all creditors were paid a ratable dividend. In no respect are modern codes superior to the Roman, so much as in reference to imprisonment for debt. In the United States it has practically ceased, and in England no one can be imprisoned for a debt under 20 pounds, and in France under 8 pounds.

[Sidenote: Appeal.]

Under the Roman republic, there was no appeal in civil suits, but under the emperors a regular system was established. Under Augustus, there was an appeal from all the magistrates to the prefect of the city, and from him to the Praetorian prefect or emperor. In the provinces there was an appeal from the municipal magistrates to the governors, and from them to the emperor. Under Justinian, no appeal was allowed from a suit which did not involve at least twenty pounds in gold.

[Sidenote: Criminal courts.]

In regard to criminal courts, among the Romans, during the republic, the only body which had absolute power of life and death was the _comitia centuriata_. The Senate had no jurisdiction in criminal cases, so far as Roman citizens were concerned. It was only in extraordinary emergencies that the Senate, with the consuls, assumed the responsibility of inflicting summary punishment. Under the emperors, the Senate was armed with the power of criminal jurisdiction. And as the Senate was the tool of the imperator, he could crush whomsoever he pleased.

As it was inconvenient, when Rome had become a very great city, to convene the comitia for the trial of offenders, the expedient was adopted of delegating the jurisdiction of the people to persons invested with temporary authority, called _quaesitores_. These were established at length into regular and permanent courts, called _quaestiones perpetuae_. Every case submitted to these courts was tried by a judge and jury. It was the duty of the judge to preside and regulate proceedings according to law; and it was the duty of the jury, after hearing the evidence and pleadings, to decide upon the guilt or innocence of the accused. As many as fifty persons frequently composed the jury, whose names were drawn out of an urn. Each party had a right to challenge a certain number, and the verdict was decided by a majority of votes. At first the judices were chosen from the Senate, and afterwards from the Equestrians, and then again from both orders. But in process of time the _quaestiones perpetuae_ gave place to imperial magistrates. The accused defended himself in person or by counsel.

[Sidenote: Crimes.]

The Romans divided _crimes_ into public and private. Private crimes could only be prosecuted by the party injured, and were generally punished by pecuniary fines, as among the old Germanic nations.

[Sidenote: Treason.]

Of public crimes, the _crimen loesoe majestatis_, or treason, was regarded as the greatest, and this was punished with death, and with confiscation of goods, [Footnote: I. 4, 18, 3.] while the memory of the offender was declared infamous. Greater severity could scarcely be visited on a culprit. Treason comprehended conspiracy against the government, assisting the enemies of Rome, and misconduct in the command of armies. Thus Manlius, in spite of his magnificent services, was hurled from the Tarpeian Rock, because he was convicted of an intention to seize upon the government. Under the empire, not only any attempt on the life of the emperor was treason, but disrespectful words or acts. The criminal was even tried after death, [Footnote: C. 9, 8, 6.] that his memory might become infamous, and this barbarous practice existed even in France and Scotland, as late as the beginning of the seventeenth century. In England, men have been executed for treasonable words. Beside treason there were other crimes against the state, such as a breach of the peace, extortion on the part of provincial governors, embezzlement of public property, stealing sacred things, bribery, most of which offenses were punished by pecuniary penalties.

[Sidenote: Capital punishments.]

[Sidenote: Criminal law gradually ameliorated.]

But there were also crimes against individuals which were punished with the death penalty. Willful murder, poisoning, parricide, were capitally punished. Adultery was punished by banishment, beside a forfeiture of considerable property. [Footnote: D, 48, 5.] Constantine made it a capital offense. The Romans made adultery to consist in sexual intercourse with another man's wife, but not with a woman who was not married, even if he were married. Rape was punished with death [Footnote: C. 9, 13.] and confiscation of goods, as in England till a late period, when transportation for life became the penalty. The punishments inflicted for forgery, coining base money, and perjury, were arbitrary. Robbery, theft, patrimonial damage, and injury to person and property, were private trespasses, and not punished by the state. After a lapse of twenty years, without accusation, crimes were supposed to be extinguished. The Cornelian, Pompeian, and Julian laws formed the foundation of criminal jurisprudence, which never attained the perfection that was seen in the Civil Code. It was in this that the full maturity of wisdom was seen. The emperors greatly increased the severity of punishments, as probably necessary in a corrupt state of society. After the decemviral laws fell into disuse, the Romans, in the days of the republic, passed from extreme rigor to great lenity, as is observable in the transition from the Puritan regime to our times in the United States. Capital punishment for several centuries was exceedingly rare, and this was prevented by voluntary exile. Under the empire, public executions were frequent and revolting.

[Sidenote: Fines.]

[Sidenote: Exile.]

Fines were a common mode of punishment with the Romans, as with the early Germans. Imprisonment in a public jail was also rare, the custom of bail being in general use. Although retaliation was authorized by the Twelve Tables for bodily injuries, it was seldom exacted, since pecuniary compensation was taken in lieu. Corporal punishments were inflicted upon slaves, but rarely upon citizens, except for military crimes. But Roman citizens could be sold into slavery for various offenses, chiefly military, and criminals were often condemned to labor in the mines or upon public works. Banishment was common--_aquae et ignis interdictio_--and this was equivalent to the deprivation of the necessities of life, and incapacitating a person from exercising the rights of citizenship. Under the emperors, persons were confined often on the rocky islands off the coast, or a compulsory residence in a particular place assigned. Thus Chrysostom was sent to a dreary place on the banks of the Euxine. Ovid was banished to Tomi. Death, when inflicted, was by hanging, scourging, and beheading, also by strangling in prison. Slaves were often crucified, and were compelled to carry their cross to the place of execution. This was the most ignominious and lingering of all deaths. It was abolished by Constantine from reverence to the sacred symbol. Under the emperors, execution took place also by burning alive and exposure to wild beasts. It was thus the early Christians were tormented, since their offense was associated with treason. Persons of distinction were treated with more favor than the lower classes, and the punishment was less cruel and ignominious. Thus Seneca, condemned for privity to treason, was allowed to choose his mode of death. The criminal laws of modern European states followed too often the barbarous custom of the emperors until a recent date. Since the French Revolution, the severity of the penal codes has been much modified.

[Sidenote: Excellence of laws pertaining to property.]

[Sidenote: Rights of citizens.]

The penal statutes of Rome, as Gibbon emphatically remarks, "formed a very small portion of the Code and the Pandects; and in all judicial proceedings, the life or death of the citizen was determined with less caution and delay than the most ordinary question of covenant or inheritance." This was owing to the complicated relations of society, by which obligations are created or annulled, while duties to the state are explicit and well known, being inscribed not only on tables of brass, but on the conscience itself. It was natural, with the growth and development of commerce and dominion, that questions would arise which could not be ordinarily settled by ancient customs, and the practice of lawyers and the decisions of judges continually raised new difficulties, to be met only by new edicts. It is a pleasing fact to record that jurisprudence became more just and enlightened as it became more intricate. The principles of equity were more regarded under the emperors than in the time of Cato. It is in the application of these principles that the laws of the Romans have obtained so high consideration. Their abuse consisted in the expense of litigation, and the advantages which the rich thus obtained over the poor. But if delays and forms led to an expensive and vexatious administration of justice, these were more than compensated by the checks which a complicated jurisprudence gave to hasty or partial decisions. It was in the minuteness and precision of the forms of law, and in the foresight with which questions were anticipated in the various transactions of business, that prove that the Romans, in their civil and social relations, were very much on a level with modern times. And it would be difficult to find, in the most enlightened of modern codes, greater wisdom and foresight than what appear in the legacy of Justinian, as to all questions pertaining to the nature, the acquisition, the possession, the use, and the transfer of property. Civil obligations are most admirably defined, and all contracts are determined by the wisest application of the natural principles of justice. What can be more enlightened than the laws which relate to leases, to sales, to partnerships, to damages, to pledges, to hiring of work, and to quasi contracts! How clear the laws pertaining to the succession to property, to the duties of guardians, to the rights of wards, to legacies, to bequests in trust, and to the general limitation of testamentary powers! How wise the regulations in reference to intestate succession, and to the division of property among males and females. We find no laws of entail, no unequal rights, no absurd distinctions between brothers, no peculiar privileges given to males over females, or to older sons. In the Institutes of Justinian, we see on every page a regard to the principles of natural justice. We discover that the property of the wife cannot be alienated nor mortgaged by a prodigal husband; that wards are to be protected from the cupidity of guardians; that property could be bequeathed by will, and that wills are sacred; that all promises are to be fulfilled; that he who is intrusted with the property of another is bound to restitution by the most imperative obligations; that usury should be restrained; that all injuries should be repaired; that cattle and slaves should be protected from malice and negligence; that atrocious cruelties in punishment should not be inflicted; that malicious witnesses should be punished; that corrupt judges should be visited with severe penalties; that libels and satires should subject their authors to severe chastisement; that every culprit should be considered innocent until his guilt was proved. In short, every thing pertaining to property and contracts and wills is guarded with the most zealous care. A man was sure of possessing his own, and of transmitting it to his children. No infringement on personal rights could be tolerated. A citizen was free to go where he pleased, to do whatsoever he would, if he did not trespass on the rights of another; to seek his pleasure unobstructed, and pursue his business without vexatious incumbrances. If he was injured or cheated, he was sure of redress. Nor could he be easily defrauded with the sanction of the laws. A rigorous police guarded his person, his house, and his property. He was supreme and uncontrolled within his family. And this security to property and life and personal rights was guaranteed by the greatest tyrants. The fullest personal liberty was enjoyed under the emperors, and it was under their sanction that jurisprudence, in some of the most important departments of life, reached perfection. If injustice was suffered, it was not on account of the laws, but the depravity of men, the venality of the rich, and the tricks of lawyers. But the laws were wise and equal. The civil jurisprudence could be copied with safety by the most enlightened of European states. And, indeed, it is the foundation of their civil codes, especially in France and Germany.

[Sidenote: Abuse of paternal power.]

That there were some features in the Roman laws which we, in these Christian times, cannot indorse, and which we reprehend, cannot be denied. Under the republic, there was not sufficient limit to paternal power, and the _paterfamilias_ was necessarily a tyrant. It was unjust that the father should control the property of his son, and cruel that he was allowed such absolute control, not only over his children, but his wife. But the limits of paternal power were more and more curtailed, so that under the latter emperors, fathers were not allowed to have more authority than was perhaps expedient.

[Sidenote: Evils of slavery.]

The recognition of slavery as a domestic institution was another blot, and slaves could be treated with the grossest cruelty and injustice without redress. But here the Romans were not sinners beyond all other nations, and our modern times have witnessed a parallel.

It was not the existence of slavery which was the greatest evil, but the facility by which slaves could be made. The laws pertaining to debt were severe, and it was most disgraceful to doom a debtor to the absolute power of a creditor. To subject men of the same blood to slavery for trifling debts, which they could not discharge, was the great defect of the Roman laws. But even these cruel regulations were modified, so that in the corrupt times of the empire, there was no greater practical severity than what was common in England one hundred years ago. The temptations to fraud were enormous in a wicked state of society, and demanded a severe remedy. It is possible that future ages may see too great leniency shown to debtors, who are not merely unfortunate but dishonest, in these our times; and the problem is not yet solved, whether men should be severely handled who are guilty of reckless and unprincipled speculations and unscrupulous dealings, or whether they should be allowed immunity to prosecute their dangerous and disgraceful courses.

[Sidenote: Evils of divorce.]

The facility of divorce was another stigma on the Roman laws, and the degradation of woman was the principal consequence. But woman never was honored in any pagan land. Her condition at Rome was better than it was at Athens. She always was regarded as a possession rather than as a free person. Her virtue was mistrusted, and her aspirations were scorned. She was hampered and guarded more like a slave than the equal companion of man. But the whole progress of legislation was in her favor, and she continued to gain new privileges to the fall of the empire.

[Sidenote: Severity of penal law.]

[Sidenote: Certainty of punishment.]

Moreover, the penal code of the Romans, in reference to breaches of trust, or carelessness, or ignorance, by which property was lost or squandered, may have been too severe, as is the case in England in reference to hunting game on another's grounds. It was hard to doom a man to death who drove away his neighbor's cattle, or entered in the night his neighbor's house. But severe penalties alone will keep men from crimes where there is a low state of virtue and religion, and society becomes impossible when there is no efficient protection to property. If sheep can be killed by dogs, if orchards can be stripped of their fruit, and jewelry be appropriated by servants with impunity, a great stimulus to honest industry is taken away, and men will be forced to seek more distant homes where they can reap the fruits of toil, or will give up in despair. Society was never more secure and happy in England than when vagabonds could be arrested, and when petty larcenies were visited with certain retribution. Every traveler in France and England feels that in regard to the punishment of crime, those old countries, restricted as are political privileges, are vastly superior to our own. The Romans lost, under the emperors, their political rights; but they gained protection and safety in their relations with society. And where quiet and industrious citizens feel safe in their homes, and are protected in their dealings from scoundrels, and have ample scope for industrial enterprise, and are free to choose their private pleasures, they resign themselves to the loss of electing their rulers without great unhappiness. There are greater evils in the world than the deprivation of the elective franchise, great and glorious as is this privilege. The arbitrary rule of the emperors was fatal to political aspirations and rights, but the evils of political slavery were qualified and set off by the excellence of the civil code, and the privileges of social freedom.

[Sidenote: Intricacy and uncertainty of the law.]

The great practical evil connected with Roman jurisprudence was the intricacy and perplexity and uncertainty of the laws, together with the expense involved in litigation. The class of lawyers was large, and their gains were extortionate. Justice was not always to be found on the side of right. The law was uncertain as well as costly. The most learned counsel could only be employed by the rich, and even judges were venal. So that the poor did not easily find adequate redress, and the good became an evil. But all this is the necessary attendant on a factitious state of society. Material civilization will lead to an undue estimate of money. And when money purchases all that artificial people desire, then all classes will prostitute themselves for its possession, and justice, dignity, and elevation of sentiment are forced to retreat, as hermits sought a solitude, when society had reached its lowest degradation, out of pure despair of its renovation.

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The authorities for this chapter are very numerous. Since the Institutes of Gaius have been recovered, very many eminent writers on Roman law have appeared, especially in Germany and France. Among those who could be cited, are Beaufort, Histoire de la Republique Romaine; Colquhoun, Summary of the Roman Civil Law; De Fresquet, Traite Elementaire de Droit Romain; Ducaurroy (A. M. Professor of Roman Law at Paris), Les Institutes de Justinien nouvellement expliquees; Gneist (Dr. Reed), Institutionum et Regularum Juris Romani; Halifax (Dr. Samuel), Analysis of the Roman Civil Law; Heineccius (Jo. Gott.), Elementa Juris Civilis Secundum Ordinem Institutionum; Laboulaye, Essai sur les Lois Criminelles des Remains; Long's Articles on Roman Law in Dr. Smith's Dictionary; Maine's Ancient Law; Gaius, Institutionum Commentarii Quatuor; Marezole (Theodore, Professor at Leipsic), Lebruch der Institutionem des Romischen Rechts; Maynz (Charles, Professor of Law at Brussels), Elements du Droit Romain; Ortolan (M., Professor at Paris), Explication Historique des Institutes de l'Empereur Justinien; Phillimore, Introduction to the Study and History of Roman Law; Pothier, Pandectae Justinianae in Novum Ordinem Digestae; Savigny, Geschichte des Rom. Rechts; Walter, Histoire de la Procedure Civile Chez Romains.

I have found the late work of Lord Mackenzie, on Roman Law, together with the articles of George Long, in Smith's Dictionary, the most useful in compiling this notice of Roman jurisprudence. Mr. Maine's Treatise on Roman Law is exceedingly interesting and valuable. Gibbon's famous chapter should also be read by every student. There is a fine translation of the Institutes of Justinian, which is quite accessible, by Dr. Harris of Oxford. The Code, Pandects, Institutes, and Novels, are, of course, the original authority, with the long-lost Institutes of Gaius.

In connection with the study of the Roman law, it would be well to read Sir George Bowyer's Commentaries on the Modern Civil Law; Irving, Introduction to the Study of the Civil Law; Lindley, Introduction to the Study of Jurisprudence; and Wheaton's Elements of International Law; Vattel, Le Droit des Gens.