Imagens das páginas

elected in the comitia centuriata, though the office in time became accessible to plebeians. Business soon required a second prætor to preside over the causes of foreigners, called prætor peregrinus," and prætors were afterwards allotted to the provinces as the empire widened. Under Augustus, the prætors had multiplied to sixteen ; and in the time of Pomponius, there were eighteen, and one of them judged de fidei commissa. Every prætor, on entering into office, established and published certain rules and forms, as the principle and method by which he proposed to administer justice for the year. He had no power to alter these rules, and this jus prætorium vel honorarium, tempered the ancient law by the spirit of equity and public utility, and it was termed the living interpreter of the civil law. But as the prætor was apt to vary from his annual edict, and to change it acccording to circumstances, which opened the way to many frauds, it was provided by a law, enacted at the instance of the tribune Caius Cornelius, that the prætor should adhere to his edicts promulgated on the commencement of his magistracy. These prætorian edicts were studied as the most interesting branch of Roman law, and they became a substitute for the knowledge of the twelve tables, which fell into neglect, though they had once been taught as a carmen necessari. um, and regarded as the source of all legal discipline.d

a Professor Hugo, in his History of the Roman Law, soc. 158, attributes to the institution of the prætor peregrinus, the rise and growth of the jus gentium, which had a propitious influence even upon the Roman municipal jurisprudence. To the authority of the jus prætorium, the edicts of the prætor urbanus, and the Prætor peregrinus, seem to have equally contributed. Ibid. sec. 188, 189.

b Dig. 1. 2. 32.
c Dig. 1. 1. 7. and 8.

d Cic. de Legg. b. 1. c. 5. and b. 2. c. 23. Cic. de Orat. b. 1. ch. 10. Gravina de Ortu et Prog. J. C. sec. 38. The Edicta Magistratuum, or Jus Prætorium, was not only a fruitful, but a legitimate source of the Roman law, as Hugo has laboured to prove. Hist. du Droit Rom. sec. 177, 178, 179. He compares this prætorian law VOL. I.


Responsa prudentum

The opinions of lawyers, called the responsa, or interpretationes prudentum, composed another and very efficient source of the ancient Roman jurisprudence.

The most ancient interpreters were the members of the college of pontifices, composed of men of the first rank and knowledge. Civil statesmen, and eminent private citizens, followed their example, and sometimes debated in the forum. Their answers to questions put, were gradually adopted by the courts of justice, by reason of their intrinsic equity and good sense; and they became incorporated into the body of the Roman common law, under the name of fori disputationes, and jus civile, or responsa prudentum. This business, undertaken gratuitously by persons of the highest distinction, grew into a public profession, and law became a regular science, taught openly in private houses as in schools. The names of the principal lawyers who became, in this way, public professors of the law, are to be found in the work of Pomponius, and in the writings of Cicero, Horace, Tacitus, and the other authors of the classical ages. Their opinions were preserved by their successors, and fragments of them are, no doubt, dispersed in different parts of the pandects, without the sanction of their names. Cicero speaks of this employment of distinguished jurists with the greatest encomiums, and as being the grace and ornament, and most honourable business of old age. The house of such a civilian becomes a living oracle to the whole city, and this very accomplished orator and statesman fondly anticipated such a dignified retreat and occupation for his declining years. The philosophy, and policy, and wisdom of Greece, were collected together, says Gravina," by the Roman civilians, and all that was useful introduced into the Roman law; and if it were really true that the twelve tables were not drawn by the rough agents who compiled them directly from Grecian fountains, we are assured that the omission was abundantly supplied in after ages; and the institutions of Greece were studied by more enlightened statesmen, and contributed to perfect and adorn the Roman law..

to the English equity jurisprudence. Many of the edicts bore a resemblance to the modern ordinances, or Codes de Procedure Civile.

a Dig. 1. 2. 5. b Dig. 1. 2.

c In the times of the republic, the practice of the law was gratuitous, and highly honorary. All employment for hire was prohibited, by a law enacted in the year of the city 550, at the instance of the Tribune Marcus Cincius. The profession at length became a business of gain, and was abused until Augustus revived the Cincian law with additional sanction by a decree of the senate. But as a reasonable compensation was necessary to advocates who devoted their time and talents to the profession, the compensation was allowed, and regulated by a decree of the senate in the time of Claudius ; (Tacit. Ann. b. 11. c. 5, 6, 7.) and afterwards, according to

In the Augustan age, the body of the Roman law had Age of Augrowu to immense magnitude. It was composed of the leges, or will of the whole Roman people declared in the comitia centuriata ; the plebiscita, enacted in the comitia tributa ; the senatus consulta, promulgated by the single authority of the senate; the legis actiones; the edicta magistratuum; the responsa prudentum; and, subsequent to the age of Cicero, is to be added the constitutio principis, or ordinances of the Roman emperors. The Roman civilians began very early to make collections and digests of the law. The book of Sextus Ælius contained the laws of the twelve tables, the forms of actions, and the responsa prudentum. Publius Mucius, Quintus Mucius, Brutus, and Manilius, all left volumes upon law, and the three books of the latter existed in the time of Pomponius as monuments of his fame. Servius Sulpicius left behind him nearly 180 volumes upon the civil law. Many distinguished scholars arose under his discipline, who wrote upon jurisprudence; and Aufidius Namusa digested the writings of ten of those scholars into 140 books. Antistius Labeo, under Augustus, surpassed all his contemporaries, and he compiled 400 volumes, many of which, Pomponius says, he possessed. The noble design of reducing the civil law into a convenient digest, was conceived by such great men as Cicero,e Pompey, and Julius Cæsar ; though it is certain that no systematic, accessible, and authoritative treatise on the civil law, appeared during


the law of the Pandects, b. 50. tit. 13. c. 1. sec. 5. 10.12. the judges in the provinces were to determine on, and allow a reasonable charge to the advocate.

a Cic. de Orat. 1. 45. See also, Quinctilian's Inst. lib. 12. c. 11. where he alludes to Cicero, and strongly approves of this employment of the orator when he retires from practice at the bar.

b Orig. Jur. Civ. b. 1. Proæm.

c The Grecian philosophy was not more fatal to the ancient Roman superstition, than Grecian forensic eloquence was to the severity of the Roman civil law. Hugo's Histoire du Droit Romain. sec. 161. Cicero was of opinion, that his countrymen excelled the Greeks in laws and institutions, as well as in morals and manners.Mores et instituta vitæ, resque domesticas ac familiares nos profecto et melius tuemur et lautius : rem vero publicam nostri majores certe melioribus temperaverunt et institutis et legibus. Tuscul. Quæst. lib. 1. ch. 1. He supposes that the early Romans had imbibed a tincture of the philosophy of the Greeks from the doctrines of Pythagoras, who dwelt in southern Italy at the time of the expulsion of the Tarquins. Ibid. lib. 4. 1. But it was Cicero himself who by his writings transferred into his own verpacular tongue the great body of the Grecian philosophy.

a Immensus aliarum super alias acervalarum legum cumulus. Livy, 3. 34. Heineccius applied this passage of Livy to the civil law, but Hugo says he was in an error, and that the most part of the laws referred to by Livy were political regulations, and had no concern with private right. Hist. du Droit Rom. par Hugo, sec. 167.

6 Dig. 1. 1. 7. and 1. 2. 12. Inst. 1. 2. 3. Gaius, 1.2.
c Dig. 1.2. 36. and 39.
d Dig. 1. 2. sec. 41. 43, 44. 56, 57.

e Cicero says he had long thought of the task of digesting and reducing the civil law into a few elementary and definite principles, and thereby relieving it from difficulty and obscurity. De Orat. lib. 1. ch. 42.

the existence of the republic; and Cicero says, that the law lay scattered and dissipated in bis time. The Roman jurisprudence was destined to continue for several centuries under the imperial government, a shapeless and enormous mass, receiving continual accumulations; but it was fortunately cultivated under the emperors by a succession of illustrious men, equally distinguished for their learning, wisdom, and probity.

Before the time of Augustus, the responsa prudentum were given viva voce, and they had not the force of any authority in the forum, and the business was free to all persons. The character of these responsa was abused and discredited by the crude opinions of pretenders, and Augustus restrained the profession of the jurisconsults to such as he should select as most worthy, and they were to be first approved of and commissioned by him. They then began to give their opinions in writing, with their reasons annexed. This raised their influence, and reduced the prætors to a state of comparative dependence upon those living oracles of law, who were under the influence of the emperor, and who obtained by their means the control of the administration of the law. Heineccius says, that Augustus instituted this college of civilians in order that he might covertly assume legislative power, and adapt the republican jurisprudence to the change in the government. He likewise instituted a cabinet council, which was called the consistory, by succeeding princes. It was composed of the consuls, several other magistrates, and a certain number of senators chosen by lot. Ulpian was a member of this royal council under Alex

a Cic. de Orat. lib. 2. c. 33. Suet. J. Cæsar. sec. 44. Heineccii Elementa Juris Inst. Proæm. sec. 2. Dr. Taylor's Elements of the Civil Law, 14.

b Dig. 1. 2. 47. Heinec. Hist. Jur. Civ. lib. 1. sec. 157, 158. 180.

c Gravina de Ortu et Prog. sec. 42. Heinec. Antiq. Rom. lib. 1. tit. 2. sec. 39.

d Gravina de Romano Imperio, sec. 17. This imperial consistory

« AnteriorContinuar »