Early Reman law.

verning the greatest people in the ancient world, for the space of thirteen or fourteen centuries, and undergoing extraordinary vicissitudes after the fall of the western empire, it was revived, admired, and studied, in modern Europe, on account of the variety and excellence of its general principles. It is now taught and obeyed, not only in France, Germany, Holland, and Scotland, but in the isl ands of the Indian Ocean, and on the banks of the Mississippi and the St. Lawrence. So true, it seems, are the words of d'Aguesseau, that "the grand destinies of Rome are not yet accomplished; she reigns throughout the world, by her reason, after having ceased to reign by her authority."

My design in the present lecture is to make a few general observations on the history and character of the civil law, in order to excite the curiosity and direct the attention of the student to the proper sources of information on the subject. The acquaintance which I have with that law is necessarily very imperfect; and I am satisfied that no part of it can be examined, and no one period of its history can be touched, by a person not educated under that system, without finding himself at once admonished of the difficulty and delicacy of the task, by reason of the overwhelming mass of learning and criticism which presses upon every branch of the inquiry.

That part of the Roman jurisprudence which has been denominated the ancient, embraced the period from the foundation of the city by Romulus, to the establishment of the twelve tables.

The fragment of the Enchiridion inserted in the Pan dects, is the only ancient history of the first ages of the Roman law now extant. It was composed by Pomponius, in the second century of the Christian era, and rescued from oblivion by Justinian; and Bynkershoeck has republished

a Dig. lib. 1. tit. 2. De origine juris.

b Prætermissa ad leg. 2 D. De origine juris. Opera, tom. 1, 301.

it, and endeavours to restore the integrity of the original text by emendations and a critical commentary. From this fragment we learn that Sextus or Caius Papirius, who was a pontifex maximus about the time of the expulsion of Tarquin, made a collection of the leges regia, or laws and usages of the Romans under their kings, and which was known by the name of the Jus Civile Papirianum. Very few, if any, fragments of this original collection by Papirius now remain, though efforts have been made to restore, if possible, some portion of these early Roman laws. Such a work was evidence of great progress in jurisprudence under the kings, and it must have contained an account, which would have been at the present day most deeply interesting and curious, of the primitive institutions of a city destined to become the mistress of the world."

The genius of the Roman government and people had displayed itself by the time of the expulsion of their kings, and the foundations of their best institutions and discipline had been laid. The Roman people were divided into tribes and curia, and the patrician order and the Roman senate were instituted under Romulus, and that last body became in process of time the most powerful and majestic tribunal in all antiquity. The general assemblies of the people were

a Heinecc. Antiq. Rom. Jur. Proam. sec. 1 and 2. Hist. Jur. Civ. lib. 1. sec. 15, 16.

b Gibbon, in his History, vol. 8. p. 5. note, denies altogether the fact of any such original compilation by Papirius. Niebuhr, on the other hand, though he treats the early Roman history as a poetical legend, says that the high antiquity of the collection of the laws of the kings, compiled by Papirius, seems unquestionable. History of Rome, vol. 1. 211. I am incompetent to decide such a question. It is cited as an original and authentic work by Pomponius, who had infinitely better means of knowledge than any modern writer; and it is assumed to be so by such master critics as Bynkershoeck and Heineccius, and yet the singular learning and acuteness of Gibbon give almost overbearing weight to his critical opinions.

a part of the primitive government, and a very efficient portion of the legislative power, and they met in their curiæ or parishes, and the vote of every citizen belonging to the curiæ was equal in these comitia curiata. The senate was a select body of the elder citizens, and the king was elected for life by the curiæ, upon the nomination of the senate, and the laws of the comitia conferred upon him the powers of a civil and military chief. The fecial and other colleges established by Numa, bound the Romans to religious discipline. Servius Tullius divided the people into six classes, and one hundred and ninety-three centuries, and this was a most important change in the Roman polity. The first class contained the patricians, knights, and rich citizens,

a I have followed Dionysius of Halicarnassus, Livy, Cicero, and the other authors of the classical ages, in respect to the early history of Rome; and I have not been inclined to adopt the historical scepticisms of some modern antiquaries, (of whom Niebuhr may be placed at the head,) so far, as to reject as fable what the classics have taught us concerning the civil and political institutions of the earlier Romans. The account in the text of the mixed monarchy of Rome, under the kings, is confirmed by Niebuhr himself. Hist. of Rome, vol. 1. 290–295, English edit. Camb. 1828. He holds, however, contrary to the received opinion, that the curia were at first assemblies of the patricians, and not of the whole people; and that the Plebs were landholders of the neighbouring towns and country, and fieldlabourers, who were free, and above the degree or condition of the clients attached to the patricians, but that they had no vote. Niebuhr's work is so intermixed with true and fabulous story, and he goes so deeply into the "tangled thickets of the forest," that it becomes rather dffiicult to know what is and what is not to be deemed genuine history, amidst his incessant scepticism and complicated narration.

b Numa religionibus et divino jure populum devinxit. Tac. Ann. 3. 26. According to Cicero, the auspices, religious ceremonies, courts of justice, appeals to the people, the senate, and the whole military discipline, were instituted by royal authority, as early as the foundation of the city. He imputes the institution of the auspices and the senate particularly to Romulus. Tusc. Quæst. lib. 4. 1. De Repub. lib. 2. sec. 9, 10. 14. He says, further, that Numa was the writer of laws which were then extant! Ibid. lib. 5. sec. 2.

and ninety-eight centuries; and when the people assembled by centuries in their comitia centuriata, (as they generally did thereafter when called by the consuls or senate,) they voted by centuries; and the first class, containing a majority of all the centuries, if unanimous, dictated the laws. This arrangement threw the powers of government into the hands. of the patrician order, and of men of property.

After the etablishment of the republic, all the higher magistrates were elected in the comitia centuriata, which were convoked by the consuls, and they presided in them, counted the votes, and declared the result; and their resolutions were leges of the highest authority, and binding on the whole community. After the institution of tribunes, they convoked the assemblies of the people by tribes, and there all the people met on an equality, and voted per capita, and the comitia tributa were the same in effect and substance as the comitia curiata. They elected the subordinate magistrates, and enacted plebiscita, binding on the plebeians alone, until the Hortensian law made the decrees of the people in their comitia tributa binding equally on patricians and plebeians.

As the whole administration of justice, civil and criminal, had been transferred from the kings to the consuls, it soon became necessary to control the exercise of this formidable power. This was done by the Valerian law, proposed by

a Eosque ita disparavit, says Cicero, (that is, he so distributed the citizens in classes,) ut suffragia non in multitudinis sed in locupletium potestate essent: curavitque quod semper in republica tenendum est, ne plurimum valeant plurimi. De Repub. lib. 2. sec. 22. Cicero seems to have been aware of the danger to property from universal and equal suffrage-Ila nec prohibebatur quisquam jure suffragii: et is valebat in suffragio plurimum, cujus plurimum intererat esse in optimo Statu civitatem.

b The comitia tributa were free from the restraints placed upon the comitia curiata, inasmuch as they could be held without a previous senatus consultum, and were not subject to the check of the Auspices, which were under the management of the patricians.

c Dig. 1.2.2.8. Gravina de ortu et prog. jur. civ. sec. 28.

the consul Valerius, and granting to persons accused of crimes a right of appeal from the judgment of the consuls to the people. It then became an established principle in the Roman constitution, that no capital punishment could be inflicted upon a Roman citizen without the vote of the people, though the consuls retained the power of inflicting very severe imprisonment. The Valerian law became an imperfect palladium of civil liberty, and was in some respects analogous to the habeus corpus act in the English law; but the appointment of a dictator was a suspension of the law.

As the royal laws collected by Papirius had ceased to operate, except indirectly by the force of usage; and as the Romans, for twenty years after the expulsion of Tarquin, had been governed without any known public rules, they began to suffer the evils of uncertain and unsteady laws. The call for written law was a long time resisted on the part of the magistrates and senate; but it was at last complied with, and a commission of three persons, by the joint consent of the senate and tribunes, was instituted to form a system of law. This commission gave birth to the twelve tables, which form a distinguished era in the history of the Roman law, and constitute the commencement of what has been called the middle period of the Roman jurisprudence.

a Dig. 1. 2. 2. 16.

b Incerto magis jure et consuetudine quam per latam legem. Dig.

1. 2. 3.

c The Enchiridion of Pomponius says, that the deputies were commissioned to seek laws from the Grecian cities; (Dig. 1. 2. 2. 4.) and the original historians, Livy (b. 3. ch. 31, 32.) and Dionysius of Halicarnassus, (Antiq. Rom. b. 10.) say, that the deputation was sent to Athens to learn the laws and institutions of Greece. Gravina, (De orlu et prog. jur. civ. sec. 32.; and De jure nat. gent. et xu tabularum, sec. 23..) Heineccius, (Hist. jur. civ. sec. 24. and Antiq. Rom. Jur. Proœm. sec. 3.) Voet, (Com. ad Pand. 1. 2. 1.) Dr. Taylor, (Hist. of the Roman Law, p. 8.) and the generality of modern wri