The Greeks, with all their genius, their great creation in literature, philosophy, and art, did very little for civilization, which we can trace, in the science of jurisprudence. They were too speculative for such a practical science. Nevertheless their speculative wisdom was made use of by Roman jurists. It was only so far as philosophy modified laws, that the influence of Greece was of much account.
[Sidenote: Jurisprudence culminates with emperors.]
Nor did Roman jurisprudence culminate in its serene majesty till the time of the emperors. It was not perfectly developed, until Justinian consolidated it in the Code, the Pandects, and the Institutes. The classical jurists may have laid the foundation; the superstructure was raised under the auspices of those whom we regard as despots.
[Sidenote: Early legislation.]
[Sidenote: The Twelve Tables.]
Ingenious writers, like Vico and Niebuhr, have extended their researches to the government of the kings, and advanced many plausible speculations; but the earliest legislation worthy of notice, was the celebrated code called the Twelve Tables, framed from the reports of the commissioners whom the Romans sent to Athens and other Greek states, to collect what was most useful in their legal systems. But scarcely any part of the civil law contained in the Twelve Tables has come down to us. All we know with certainty, is that it was the intention of the decemviral legislation to bring the estates into closer connection, and to equalize the laws for both. Nor do the provisions of the decemviral code, with which we are acquainted, show that enlightened regard to natural justice which characterized jurisprudence in its subsequent development. It allowed insolvent debtors to be treated with great cruelty; they could be imprisoned for sixty days, loaded with chains, and then might be sold into foreign slavery. It sanctioned a barbarous retaliation—an eye for an eye, and a tooth for a tooth. But it gave a redress for lampoons or libels, allowed an appeal from the magistrate to the people, and forbid capital punishment except by a decision of the centuries. [Footnote: Lord Mackenzie, part 6.] Niebuhr maintains, [Footnote: Lecture 25.] in his lectures on the History of Rome, that the Twelve Tables conceded the right to every pater familias of making a will, by which regulation the child of a plebeian, by a patrician mother, could succeed to his father's property, which was of great importance, and a great step in natural justice. It is supposed that the most important part of the decemviral legislation was the jus publicum, [Footnote: Cicero, De Legibus.] or that which refers to the Roman constitution. The Twelve Tables obtained among the Romans a peculiar reverence; they were committed to memory by the young; they were transcribed with the greatest care, and were considered as the fountain of right. They were approved by the comitia centuriata, which was the supreme authority, and in the time of Appius Claudius was composed of patricians alone. If Niebuhr is right in his statement that the power of making wills was given to plebeians, it shows a greater liberality on the part of patricians than what they generally have had credit for, and is hardly to be reconciled with the statement of Lord Mackenzie, that all marriages between patricians and plebeians were prohibited by the new code.
[Sidenote: The Twelve Tables the basis of Roman law.]
[Sidenote: Progress of Roman Law.]
The laws of the Twelve Tables were the basis of all the laws, civil and religious. But the edicts of the praetors, who were the great equity judges, as well as the common-law magistrates, [Footnote: Maine's Ancient Law, p. 67.] proclaimed certain changes which custom and the practice of the courts had introduced, and these, added to the leges populi or laws proposed by the consul and passed by the centuries, the plebiscita or laws proposed by the tribunes and passed by the tribes, and the senatus consulta, gradually swelled the laws to a great number. Three thousand plates of brass, containing these various laws, were deposited in the capitol. [Footnote: Suetonius, In Vespa.] Subtleties and fictions were introduced by the lawyers to defeat the written statutes, and jurisprudence became complicated, even in the time of Cicero. The opinions of eminent lawyers were even adopted by the legal profession, and were recognized by the courts. The evils of a complicated jurisprudence were so evident in the seventh century of the city, that Q. Mucius Scaevola, a great lawyer, when consul, published a scientific elaboration of the civil law. Cicero studied law under him, and his contemporaries, Alfenus Varus and Aeulius Gallus, wrote learned treatises, from which extracts appear in the Digest. Caesar contemplated a complete revision of the laws, but did not live long enough to carry out his intentions. His legislation, so far as he directed his mind to it, was very just. Among other laws was one which ordained that creditors should accept lands as payment for their outstanding debts, according to the value determined by commissioners. In his time, the relative value of money had changed, and was greatly diminished. The most important law of Augustus, was the lex oelia sentia, deserving of all praise, which related to the manumission of slaves. But he did not interfere with the social relations of the people after he had deprived them of political liberty. He once attempted, by his Lex Julia et Papia Poppaea, to counteract the custom which then prevailed, of abstaining from legal marriage and substituting concubinage instead, by which the free population declined; but this attempt to improve the morals of the people met with such opposition from the tribes or centuries, that the next emperor abolished popular assemblies altogether, which Augustus feared to do. The Senate, in the time of the emperors, composed chiefly of lawyers and magistrates, and entirely dependent upon them, became the great fountain of law. By the original constitution, the people were the source of power, and the Senate merely gave or refused its approbation to the laws proposed, but under the emperors the comitia disappeared, and the Senate passed decrees, which have the force of laws, subject to the veto of the emperor. It was not until the time of Septimus Severus and Caracalla, that the legislative action of the Senate ceased, and the edicts and rescripts of emperors took the place of all legislation.
[Sidenote: Q. Mucius Scaevola.]