Part 26 (2/2)

=The Twelve Tables.=--The Romans, like all other ancient peoples, had at first no written laws. They followed the customs of the ancestors--that is to say, each generation did in everything just as the preceding generation did.

In 450 ten specially elected magistrates, the decemvirs, made a series of laws that they wrote on twelve tables of stone. This was the Law of the Twelve Tables, codified in short, rude, and trenchant sentences--a legislation severe and rude like the semi-barbarous people for whom it was made. It punished the sorcerer who by magical words blasted the crop of his neighbor. It p.r.o.nounced against the insolvent debtor, ”If he does not pay, he shall be cited before the court; if sickness or age deter him, a horse shall be furnished him, but no litter; he may have thirty days' delay, but if he does not satisfy the debt in this time, the creditor may bind him with straps or chains of fifteen pounds weight; at the end of sixty days he may be sold beyond the Tiber; if there are many creditors, they may cut him in parts, and if they cut more or less, there is no wrong in the act.”

According to the word of Cicero, the Law of the Twelve Tables was ”the source of all the Roman law.” Four centuries after it was written down the children had to learn it in the schools.

=The Symbolic Process.=--In the ancient Roman law it was not enough in buying, selling, or inheriting that this was the intention of the actor; to obtain justice in the Roman tribunal it was not sufficient to present the case; one had to p.r.o.nounce certain words and use certain gestures. Consider, for example, the manner of purchasing. In the presence of five citizens who represent an a.s.sembly and of a sixth who holds a balance in his hand, the buyer places in the balance a piece of bra.s.s which represents the price of the thing sold. If it be an animal or a slave that is sold, the purchaser touches it with his hand saying, ”This is mine by the law of the Romans, I have bought it with this bra.s.s duly weighed.” Before the tribunal every process is a pantomime: to reclaim an object one seizes it with the hand; to protest against a neighbor who has erected a wall, a stone is thrown against the wall. When two men claim proprietors.h.i.+p in a field, the following takes place at the tribunal: the two adversaries grasp hands and appear to fight; then they separate and each says, ”I declare this field is mine by the law of the Romans; I cite you before the tribunal of the praetor to debate our right at the place in question.” The judge orders them to go to the place. ”Before these witnesses here present, this is your road to the place; go!” The litigants take a few steps as if to go thither, and this is the symbol of the journey. A witness says to them, ”Return,” and the journey is regarded as completed. Each of the two presents a clod of earth, the symbol of the field. Thus the trial commences;[164] then the judge alone hears the case. Like all primitive peoples, the Romans comprehended well only what they actually saw; the material acts served to represent to them the right that could not be seen.

=The Formalism of Roman Law.=--The Romans scrupulously respected their ancient forms. In justice, as in religion, they obeyed the letter of the law, caring nothing for its sense. For them every form was sacred and ought to be strictly applied. In cases before the courts their maxim was: ”What has already been p.r.o.nounced ought to be the law.” If an advocate made a mistake in one word in reciting the formula, his case was lost. A man entered a case against his neighbor for having cut down his vines: the formula that he ought to use contained the word ”arbor,” he replaced it with the word ”vinea,” and could not win his case.

This absolute reverence for the form allowed the Romans some strange accommodations. The law said that if a father sold his son three times, the son should be freed from the power of the father; when, therefore, a Roman wished to emanc.i.p.ate his son, he sold him three times in succession, and this comedy of sale sufficed to emanc.i.p.ate him.

The law required that before beginning war a herald should be sent to declare it at the frontier of the enemy. When Rome wished to make war on Pyrrhus, king of Epirus, who had his kingdom on the other side of the Adriatic, they were much embarra.s.sed to execute this formality.

They hit on the following: a subject of Pyrrhus, perhaps a deserter, bought a field in Rome; they then a.s.sumed that this territory had become territory of Epirus, and the herald threw his javelin on this land and made his solemn declaration. Like all other immature peoples, the Romans believed that consecrated formulas had a magical virtue.

=Jurisprudence.=--The Law of the Twelve Tables and the laws made after them were brief and incomplete. But many questions presented themselves that had no law for their solution. In these embarra.s.sing cases it was the custom at Rome to consult certain persons who were of high reputation for their knowledge of questions of law. These were men of eminence, often old consuls or pontiffs; they gave their advice in writing, and their replies were called the Responses of the Wise.

Usually these responses were authoritative according to the respect had for the sages. The emperor Augustus went further: he named some of them whose responses should have the force of law. Thus Law began to be a science and the men versed in law formulated new rules which became obligatory. This was Jurisprudence.

=The Praetor's Edict.=--To apply the sacred rules of law a supreme magistrate was needed at Rome. Only a consul or a praetor could direct a tribunal and, according to the Roman expression, ”say the law.” The consuls engaged especially with the army ordinarily left this care to the praetors.

There were always at Rome at least two praetors as judges: one adjudicated matters between citizens and was called the praetor of the city (praetor urba.n.u.s); the other judged cases between citizens and aliens and was called praetor of the aliens (praetor peregrinus), or, more exactly, praetor between aliens and citizens. There was need of at least two tribunals, since an alien could not be admitted to the tribunal of the citizens. These praetors, thanks to their absolute power, adjusted cases according to their sense of equity; the praetor of the aliens was bound by no law, for the Roman laws were made only for Roman citizens. And yet, since each praetor was to sit and judge for a year, on entering upon his office he promulgated a decree in which he indicated the rules that he expected to follow in his tribunal; this was the Praetor's Edict. At the end of the year, when the praeter left his office, his ordinance was no longer in force, and his successor had the right to make an entirely different one. But it came to be the custom for each praetor to preserve the edicts of his predecessors, making a few changes and some additions. Thus acc.u.mulated for centuries the ordinances of the magistrates. At last the emperor Hadrian in the second century had the Praetorian Edict codified and gave it the force of law.

=Civil Law and the Law of Nations.=--As there were two separate tribunals, there developed two systems of rules, two different laws.

The rules applied to the affairs of citizens by the praetor of the city formed the Civil Law--that is to say, the law of the city. The rules followed by the praetor of aliens const.i.tuted the Law of Nations--that is to say, of the peoples (alien to Rome). It was then perceived that of these two laws the more human, the more sensible, the simpler--in a word, the better, was the law of aliens. The law of citizens, derived from the superst.i.tious and strict rules of the old Romans, had preserved from this rude origin troublesome formulas and barbarous regulations. The Law of Nations, on the contrary, had for its foundation the dealings of merchants and of men established in Rome, dealings that were free from every formula, from every national prejudice, and were slowly developed and tried by the experience of several centuries. And so it may be seen how contrary to reason the ancient law was. ”Strict law is the highest injustice,” is a Roman proverb. The praetors of the city set themselves to correct the ancient law and to judge according to equity or justice. They came gradually to apply to citizens the same rules that the praetor of the aliens followed in his tribunal. For example, the Roman law ordained that only relatives on the male side should be heirs; the praetor summoned the relatives on the female side also to partic.i.p.ate in the succession.

The old law required that a man to become a proprietor must perform a complicated ceremony of sale; the praetor recognized that it was sufficient to have paid the price of the sale and to be in possession of the property. Thus the Law of Nations invaded and gradually superseded the Civil Law.

=”Written Reason.”=--It was especially under the emperors that the new Roman law took its form. The Antonines issued many ordinances (edicts) and re-scripts (letters in which the emperor replied to those who consulted him). Jurisconsults who surrounded them a.s.sisted them in their reforms. Later, at the beginning of the third century, under the bad emperors as under the good, others continued to state new rules and to rectify the old. Papinian, Ulpian, Modestinus, and Paullus were the most noted of these lawyers; their works definitively fixed the Roman law.

This law of the third century has little resemblance to the old Roman law, so severe on the weak. The jurisconsults adopt the ideas of the Greek philosophers, especially of the Stoics. They consider that all men have the right of liberty: ”By the law of nature all men are born free,” which is to say that slavery is contrary to nature. They also admit that a slave could claim redress even against his master, and that the master, if he killed his slave, should be punished as a murderer. Likewise they protect the child against the tyranny of the father.

It is this new law that was in later times called Written Reason. In fact, it is a philosophical law such as reason can conceive for all men. And so there remains no longer an atom of the strict and gross law of the Twelve Tables. The Roman law which has for a long time governed all Europe, and which today is preserved in part in the laws of several European states is not the law of the old Romans. It is constructed, on the contrary, of the customs of all the peoples of antiquity and the maxims of Greek philosophers fused together and codified in the course of centuries by Roman magistrates and jurisconsults.

FOOTNOTES:

[157] Sometimes called the Age of Cicero.

[158] Lucretius.--ED.

[159] One of the most noted, the plea for Milo, was written much later.

Cicero at the time of the delivery was distracted and said almost nothing.

[160] See the ”Dialogue of the Orators,” attributed to Tacitus.

[161] The word ”rhetor” signified in Greek simply orator; the Romans used the word in a mistaken sense to designate the men who made a profession of speaking.

[162] The same reserve must be maintained with regard to the arts as to the literature. The builders of the Roman monuments were not Romans, but provincials, often slaves; the only Roman would be the master for whom the slaves worked.

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