History of Ancient Civilization

by Charles Seignobos

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 pronounce certain words and use certain gestures. Consider, for example, the manner of purchasing. In the presence of five citizens who represent an assembly and of a sixth who holds a balance in his hand, the buyer places in the balance a piece of brass 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 brass 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 proprietorship 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 prætor 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 pronounced 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 emancipate his son, he sold him three times in succession, and this comedy of sale sufficed to emancipate 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 embarrassed to execute this formality. They hit on the following: a subject of Pyrrhus, perhaps a deserter, bought a field in Rome; they then assumed 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 embarrassing 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 Prætor's Edict.—To apply the sacred rules of law a supreme magistrate was needed at Rome. Only a consul or a prætor 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 prætors.

There were always at Rome at least two prætors as judges: one adjudicated matters between citizens and was called the prætor of the city (prætor urbanus); the other judged cases between citizens and aliens and was called prætor of the aliens (prætor peregrinus), or, more exactly, prætor 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 prætors, thanks to their absolute power, adjusted cases according to their sense of equity; the prætor of the aliens was bound by no law, for the Roman laws were made only for Roman citizens. And yet, since each prætor 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 Prætor's Edict. At the end of the year, when the præter 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 prætor to preserve the edicts of his predecessors, making a few changes and some additions. Thus accumulated for centuries the ordinances of the magistrates. At last the emperor Hadrian in the second century had the Prætorian 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 prætor of the city formed the Civil Law—that is to say, the law of the city. The rules followed by the prætor of aliens constituted 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 superstitious 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 prætors 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 prætor of the aliens followed in his tribunal. For example, the Roman law ordained that only relatives on the male side should be heirs; the prætor summoned the relatives on the female side also to participate in the succession.

The old law required that a man to become a proprietor must perform a complicated ceremony of sale; the prætor 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 assisted 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.