ed philosophers, historians, and statesmen, the blind tribute of patriotic veneration, and the most extravagant eulogy, as being a system inculcating the soundest principles of ethics and civil polity, and surpassing in value the jurisprudence of Solon and Lycurgus, and the ten books of the laws of Plato, and whole libraries of Grecian philosophy. As Rome increased in territory, wealth, arts, and refinement, her laws, were progressively enlarged and improved, and adapted to the progress of society, and its increasing wants and vices. The obligation of the twelve tables was gradually diminished or destroyed by the multitude of new regulations, and the history of the Roman law, from the time of the twelve tables to the reign of Hadrian, is eminently instructive.

authority. Every one was to observe his family festivals, and the rites used in his own family, and by his ancestors, in the worship of his domestic deities. Honour was to be paid to those heroes and sages whom their merit had raised to heaven. The commendable virtues were to be ranked among the gods, and to have temples erected to them, but no worship was to be paid to any vice. The sacrifices to the gods by the priests were to be the fruits of the earth and young animals, and with the most authorized ceremonies. No one was to be initiated in any mysteries but those of Ceres. Stealing of what was devoted to the gods, and incest, were declared to be capital crimes.

The 12th table related to marriage, and the rights of husbands. It precribed freedom of divorce at the pleasure of the husband; and it allowed the husband, with the consent of his wife's relations, to put her to death, when taken in adultery or drunkcnness; and it declared it to be unlawful for patricians to intermarry with plebeians.

Livy's Hist.

In the newly 36, 37., he in

a Cic. de Orat. b. 1. c. 43, 44. De Legg. 2. sec. 23. 3. 34. Tacit. Ann. 3. 27. A. Gell. Noct. Att. 20. 1. discovered treatise of Cicero, De Republica, lib. 2. c. sists, that the ten first tables were composed with the greatest equity and prudence, but he declares that the two last tables, added by the decemvirs, were iniquitous laws, and that the law prohibiting marriages between plebeians and senatorial families was a most infamous law.

After many struggles, the patricians were obliged, by the lex Horatia, to submit to the authority of the plebiscita, enacted by the plebeians alone in their comitia tributa, as being of equal force with the leges, passed at the instance of a consular or senatorial magistrate, by the whole aggregate body of the people, patricians and plebeians. The senate also frequently promulgated laws under the name of senatus consulta, by their own authority. A senatus consultum was allowed to continue in force only one year, unless ratified by the common course of rogatio ad populum ; and the tribunes could, at any time, by their veto, put a negative upon any projected decree of the senate. That body likewise assumed the right to dispense with laws, though, by a law proposed by the tribune Caius Cornelius, the senate could not exercise their dispensing power, unless 200 senators were present. Within a very few years after the adoption of the twelve tables, the prohibition of marriages between the patricians and plebeians was abolished; but the patricians had the address to retain the management and control of the whole administration of justice. This was effected in several ways. It was effected by the institution of legal forms of judicial proceeding called legis actiones, Legal Forms. and by means of the pontifices who regulated the calendar, and assumed the power of fixing the lawful days of business, the dies fasti et nefasti. These judicial forms and solemnities gave order and uniformity to the administration of justice; but they were mysteries of jurisprudence, confined to the learned of the patrician order, and locked up in the pontifical archives. They could not be changed at the pleasure of the people, and the right to interpret them belonged to the pontifical college, and the patricians had re

a Inst. 1. 2. 4. Dig. 1.2.9. The proofs are abundant, that even before the Augustan age, the senatus consulta had become one of the regular sources of the Roman law. Histoire du Droit Rom. par G. Hugo, sec. 174, 175, 176. Que consulta Patrum, qui leges juraque servat. Hor. Epist. 1. 16. v. 41.

Prætorian
Law.

tained the exclusive right of being eligible to the offices of the priesthood. The forms remained confused and undigested until Appius Claudius Cocus, a member of the pontifical fraternity, reduced them into one collection, which his scribe, Cnæus Flavius, surreptitiously published, together with the calendar or fasti, to the great satisfaction of the people. It acquired the title of the Jus civile Flavianum ; and a second collection of these legal precedents afterwards appeared, and was called the Jus civile Ælianum. This Roman science of special pleading became a subject of ridicule by Cicero, as being a cunning and captious verbal science; and these forms were expressly abolished by the Emperor Constantine as insidious.

The edicts of the prætor became another very important means of the increase and improvement of the Roman law. The judicial decisions of the prætors, or edicta prætorum, became of great consequence. They were called jus honorarium, or patrician law, derived from the honour of the prætor." There had been, from the foundation of the city, a magistrate called præfectus urbis, to administer justice in the absence of the king or consul; and after the plebeians obtained a share in the consular dignity, the patricians created a permanent city prætor, and they confined his province to the administration of justice; and such a magistrate was indispensable, as the consuls were engaged in foreign and executive duties. The prætor was at first a patrician, and

a Dig. b. 1. tit. 2. De Orig. Jur. sec. 6. Gravina says, De Ortu et Prog. J. C. sec. 33. that they were established by the policy of the ancient lawyers.

b Dig. 1. 2. 7. Livy's Hist. 9. 46. Gravina de Ortu Jur. Civ. sec. 33. and de Jur. Nat. et XII. Tab. sec. 79, 80.

c Legulejus quidam cautus et acutus præco actionum, cantor fabularum, auceps syllabarum. Cic. de Orat. 1. 55. See also Cod. 2. 58. De formulis et impetrationibus actionum sublatis.

d Dig. 1. 1. 7. and 1. 2. 10.

e Dig. 1. 2. sec. 26. 28.

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 necessarium, and regarded as the source of all legal discipline.d

a Professor Hugo, in his History of the Roman Law, sec. 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 Prator peregrinus, seem to have equally contributed. Ibid. sec. 188, 189.

b Dig. 1. 2. 32.

c Dig. 1. 1. 7. and 8.

Cic. de Orat. b. 1. ch.

The Edicta Magis

d Cic. de Legg. b. 1. c. 5. and b. 2. c. 23. 10. Gravina de Ortu et Prog. J. C. sec. 38. tratuum, 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.

67

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.c Cicero speaks of

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