XLIV. CHAP. Justinian,5 appreciate the labours of that emperor, and pause to contemplate the principles of a science so important to the peace and happiness of society. The laws of a nation form the most instructive portion of its history; and, although I have devoted myself to write the annals of a declining monarchy, I shall embrace the occasion to breathe the pure and invigorating air of the republic. Laws of the kings of Rome. The primitive government of Rome was composed with some political skill, of an elective king, a council of nobles, and a general assembly of the people. War and religion were administered by the supreme magistrate; and he alone proposed the laws, which were debated in the senate, and finally ratified or rejected by a majority of votes in the thirty curia or parishes of the city. Romulus, Numa, and Servius Tullius, are celebrated as the most ancient legislators; and each of them claims his peculiar part in the threefold division of Jurisprudence. The laws of marriage, the education of children, and the authority of parents, which may seem to draw their origin from nature itself, are ascribed to the untutored wisdom of Romulus. The law of nations and of religious worship, which Numa introduced, was derived from his nocturnal converse with the nymph Egeria. The civil law is attributed to the experience of Servius: he balanced the rights and fortunes of the seven classes of citizens; and guarded, by fifty new regulations, the observance of contracts and the punishment of crimes. The state, which he had inclined towards a democracy, was changed by the last Tarquin into lawless despotism; and when the kingly office was abolished, the patricians engrossed the benefits of freedom. The royal laws became odious or obsolete; the mysterious 5 Our original text is a fragment de Origine Juris (Pandect. 1. i. tit. ii), of Pomponius, a Roman lawyer, who lived under the Antonines (Heinecc. tom. iii. syll. iii. p. 66...126). It has been abridged, and probably corrupted, by Tribonian, and since restored by Bynkershoek (Opp. tom. i. p. 279...504). 6 The constitutional history of the kings of Rome may be studied in the first book of Livy, and more copiously in Dionysius Halicarnassensis (l. ii. p. 80...96. 119...130. 1. iv. p. 198...220), who sometimes betrays the charac ter of a rhetorician and a Greek. 7 This threefold division of the law was applied to the three Roman kings by Justus Lipsius (Opp. tom. iv. p. 279); is adopted by Gravina (Origines Juris Civilis, p. 28. Edit. Lips. 1737;) and is reluctantly admitted by Mascou, his German editor. deposit was silently preserved by the priests and nobles; and, at the end of sixty years, the citizens of Rome still complained that they were ruled by the arbitrary sentence of the magistrates. Yet the positive institutions of the kings had blended themselves with the public and private manners of the city; some fragments of that venerable jurisprudence were compiled by the diligence of antiquarians, and above twenty texts still speak the rudeness of the Pelasgic idiom of the Latins.10 CHAP. the De I shall not repeat the well-known story of the Decem- The twelve virs," who sullied by their actions the honour of inscrib-tables of ing on brass, or wood, or ivory, the TWELVE TABLES of cemvirs. the Roman laws.2 They were dictated by the rigid and jealous spirit of an aristocracy, which had yielded with reluctance to the just demands of the people. But the substance of the twelve tables was adapted to the state of 8 The most antient Code or Digest was styled Jus Papiriamum, from the first compiler, Papirius, who flourished somewhat before or after the Regifugium (Pandect. I. i. tit. ii). The best judicial critics, even Bynkershoek (tom. i. p. 284, 285.) and Heineccius (Hist. J. C. R. 1. i. c. 16, 17. and Opp. tom. iii. sylloge iv. p. 1...8), give credit to this tale of Pomponius, without sufficiently adverting to the value and rarity of such a monument of the third century, of the illiterate city. I much suspect that the Caius Papirius, the Pontifex Maximus, who revived the laws of Numa (Dionys. Hal. 1. iii. p. 171), left only an oral tradition; and that the Jus Papirianum of Granius Flaccus (Pandect. 1. L. tit. xvi. leg. 144.) was not a commentary, but an original work, compiled in the time of Cæsar (Censorin. de Die Natali, 1. iii. p. 13. Duker de Latinitate J. C. p. 157). 9 A pompous, though feeble attempt to restore the original, is made in the Histoire de la Jurisprudence Romaine of Terasson, p. 22...72. Paris, 1750, in folio; a work of more promise than performance. 10 In the year 1444, seven or eight tables of brass were dug up between Cortona and Gubio. A part of these, for the rest is Etruscan, represents the primitive state of the Pelasgic letters and language, which are ascribed by Herodotus to that district of Italy (l. i. c. 56, 57, 58); though this difficult passage may be explained of a Crestona in Thrace (Notes de Larcher, tom. i. p. 256...261). The savage dialect of the Eugubine tables has exercised, and may still elude, the divination of criticism; but the root is undoubtedly Latin, of the same age and character as the Saliare Carmen, which in the time of Horace, none could understand. The Roman idiom, by an infusion of Doric and Æolic Greek, was gradually ripened into the style of the xii tables, of the Duillian column, of Ennius, of Terence, and of Cicero (Gruter, Inscript. tom. i. p. cxlii. Scipion Maffei, Istoria Diplomatica, p. 241...258. Bibliothéque Italique, tom. iii. p. 30...41. 174...205. tom. xiv. p. 1...52). 11 Compare Livy (1. iii. c. 31....59.) with Dionysius Halicarnassensis (1. x. p. 644....xi. p. 691). How concise and animated is the Roman....how prolix and lifeless the Greek! Yet he has admirably judged the masters, and defined the rules, of historical composition. 12 From the historians, Heinneccius (Hist. J. R. l. i. No. 26.) maintains that the twelve tables were of brass....areas: in the text of Pomponius we read eboreas; for which Scaliger has substituted roboreas (Bynkershoek, p. 286). Wood, brass, and ivory, might be successively employed. the city; and the Romans had emerged from barbarism, since they were capable of studying and embracing the institutions of their more enlightened neighbours. A wise Ephesian was driven by envy from his native country: before he could reach the shores of Latium, he had observed the various forms of human nature and civil society; he imparted his knowledge to the legislators of Rome, and a statue was erected in the forum to the perpetual memory of Hermodorus.13 The names and divisions of the copper-money, the sole coin of the infant state, were of Dorian origin:" the harvests of Campania and Sicily relieved the wants of a people whose agriculture was often interrupted by war and faction; and since the trade was established," the deputies who sailed from the Tyber, might return from the same harbours with a more precious cargo of political wisdom. The colonies. of Great Greece had transported and improved the arts of their mother-country. Cuma and Rhegium, Crotona and Tarentum, Agrigentum and Syracuse, were in the rank of the most flourishing cities. The disciples of Pythagoras applied philosophy to the use of government; the unwritten laws of Charondas accepted the aid of poetry and music,16 and Zaleucus framed the republic of the Locrians, which stood without alteration above two hundred years." From a similar motive of national 13 His exile is mentioned by Cicero (Tusculan. Quæstion. v. 36.) his statue by Pliny (Hist. Nat. xxxiv. 11). The letter, dream, and prophecy of Heraclitus are alike spurious (Epistolæ Græc. Divers. p. 337). 14 This intricate subject of the Sicilian and Roman money is ably discussed by Dr. Bently (Dissertation on the Epistles of Phalaris, p. 427.... 479.) whose powers in this controversy were called forth by honour and resentment. 15 The Romans, or their allies, sailed as far as the fair promontory of Africa (Polyb. 1. iii. p. 177. edit. Casaubon, in folio). Their voyages to Cumæ, &c. are noticed by Livy and Dionysius. 16 This circumstance would alone prove the antiquity of Charondas, the legislator of Rhegium and Catana, who, by a strange error of Diodorus Siculus (tom. i. I. xii. p. 485... 492.) is celebrated long afterwards as the author of the policy of Thurium. 17 Zaleucus, whose existence has been rashly attacked, had the merit and glory of converting a band of outlaws (the Locrians) into the most virtuous and orderly of the Greek republics (see two Memoires of the Baron de St. Croix, sur la Legislation de la Grande Grèce; Mem de l'Academie, tom. xlii. p. 276....333). But the laws of Zaleucus and Charondas, which imposed on Diodorus and Stobæus, are the spurious composition of a Pythagorean sophist, whose fraud has been detected by the critical sagacity of Bentley (p. 335....377). XLIV. pride, both Livy and Dionysius are willing to believe, CHAP. that the deputies of Rome visited Athens under the wise and splendid administration of Pericles; and the laws of Solon were transfused into the twelve tables. If such an embassy had indeed been received from the Barbarians of Hesperia, the Roman name would have been familiar to the Greeks before the reign of Alexander;' and the faintest evidence would have been explored and celebrated by the curiosity of succeeding times. But the Athenian monuments are silent; nor will it seem credible that the patricians should undertake a long and perilous navigation to copy the purest model of a democracy. In the comparison of the tables of Solon with those of the Decemvirs, some casual resemblance may be found: some rules which nature and reason have revealed to every society; some proofs of a common descent from Egypt or Phœnicia.1 But in all the great lines of public and private jurisprudence, the legislators of Rome and Athens appear to be strangers or adverse to each other. Whatever might be the origin or the merit of the twelve tables,20 they obtained among the Romans that 18 I seize the opportunity of tracing the progress of this national intercourse: 1. Herodotus and Thucydides (A. U. C. 330....350.) appear ignorant of the name and existence of Rome (Joseph. contra Apion. tom. ii. 1. i. c. 12. p. 444. edit. Havercamp). 2. Theopompus (A. U. C. 400. Plin. iii. 9.) mentions the invasion of the Gauls, which is noticed in looser terms by Heraclides Ponticus (Plutarch in Camillo, p. 292. edit. H. Stephan). 3. The real or fabulous embassy of the Romans to Alexander (A. U. C. 430.) is attested by Clitarchus (Plin. iii. 9.) by Aristus and Asclepiades (Arrian, I. vii. p. 294, 295.) and by Memnon of Heraclea (apud Photium, cod. ccxxiv. p. 725.) though tacitly denied by Livy. 4. Theophrastus (A. U. C. 440) primus externorum aliqua de Romanis diligentius scripsit (Plin. iii. 9.5 5. Lycophron (A. U. C. 480....500) scattered the first seed of a Trojan colony and the fable of the Eneid (Cassandra, 1226....1280). Γης και θαλασσης σκήτρα και μοναρχίαν A bold prediction before the end of the first Punic war! 19 The tenth table, de modo sepulturæ, was borrowed from Solon (Cicero de Legibus, ii. 23....26.) the fortum per lancem et licium conceptum, is derived by Heineccius from the manners of Athens (Antiquitat. Rom. tom. ii. p. 167....175). The right of killing a nocturnal thief, was declared by Moses, Solon, and the Decemvirs (Exodus, xxii. 3. Demosthenes contra Timccratem, tom. i. p. 736. edit. Reiske. Macrob. Saturnalia, 1. i. c. 4. Collatio Legum Mosaicarum et Romanarum, tit. vii. No. 1. p. 218. edit. Cannegieter). 20 Bρaxews xai angittag is the praise of Diodorus (tom. i. I. xii. p. 494.) which may be fairly translated by the elanganti atque absolutâ brevitate verborum of Aulus Gellius (Noct. Attic. xxi. 1). Their chainfluence. racter and CHAP. blind and partial reverence which the lawyers of every country delight to bestow on their municipal institutions. The study is recommended by Cicero1 as equally pleasant and instructive. "They amuse the mind by the remem"brance of old words and the portrait of ancient manners; "they inculcate the soundest principles of government "and morals; and I am not afraid to affirm, that the brief "composition of the Decemvirs surpasses in genuine "value the libraries of Grecian philosophy. How ad"mirable," says Tully, with honest or affected prejudice, "is the wisdom of our ancestors. We alone are the mas"ters of civil prudence, and our superiority is the more "conspicuous, if we deign to cast our eyes on the rude "and almost ridiculous jurisprudence of Dracon, of Solon, "and of Lycurgus." The twelve tables were committed to the memory of the young and the meditation of the old; they were transcribed and illustrated with learned diligence; they had escaped the flames of the Gauls, they subsisted in the age of Justinian, and their subsequent loss has been imperfectly restored by the labours of modern critics.22 But although these venerable monuments were considered as the rule of right, and the fountain of justice,23 they were overwhelmed by the weight and variety of new laws, which, at the end of five centuries, became a grievance more intolerable than the vices of the city. Three thousand brass plates, the acts of the senate and people, were deposited in the Capitol:25 and some of the acts, as the Julian law against extortion, surpassed the number of an hundred chapters. The Decemvirs had neglected to import the sanction of Zaleucus, 26 21 Listen to Cicero (de Legibus, ii. 33.) and his representative Crassus (de Oratore, i. 43, 44). 22 See Heineccius (Hist. J. R. No. 29....33). I have followed the restoration of the xii tables by Gravina (Origines J. C. p. 280....307.) and Terasson (Hist. de la Jurisprudence Romaine, p. 94....205). 23 Finis aqui juris (Tacit Annal. iii. 27). Fons omnis publici et privati juris (T. Liv. iii. 34). 24 De principiis juris, et quibus modis ad hanc multitudinem infinitam ac varietatem legum perventum sit altius disseram (Tacit. Annal. iii. 25). This deep disquisition fills only two pages, but they are the pages of Tacitus. With equal sense, but with less energy, Livy (iii. 34.) had complained, in hac immenso aliarum super alias acervatarum legum cumulo, &c. 25 Suetonius in Vespasiano, c. 8. 26 Cicero ad Familiares, viii. 8. |