During this golden age of Roman jurisprudence many commentaries were written on the Twelve Tables, the Perpetual Edict, the Laws of the People, and the Decrees of the senate, as well as a vast mass of treatises on every department of the law, most of which have perished. The Institutes of Gaius, already mentioned, are the most valuable that remain, and have thrown great light on some important branches previously involved in obscurity. Their use in explaining the Institutes of Justinian is spoken of very highly by Mackenzie, since the latter are mainly founded on the long-lost work of Gaius. The great lawyers who flourished from Trajan to Alexander Severus, like Gaius, Ulpian, Paulus, Papinian, and Modestinus, had no successors who can be compared with them, and their works became standard authorities in the courts of law.
After the death of Alexander Severus, 235 A.D., no great accession was made to Roman law until Theodosius II., 438 A.D., caused the constitutions, from Constantine to his own time, to be collected and arranged in sixteen books. This was called the Theodosian Code, which in the West was held in high esteem. It was very influential among the Germanic nations, serving as the chief basis of their early legislation; it also paved the way for the more complete codification that followed in the Justinian Code, which superseded it.
To Justinian belongs the immortal glory of reforming the jurisprudence of the Romans. "In the space of ten centuries," says Gibbon, "the infinite variety of laws and legal opinions had filled many thousand volumes, which no fortune could purchase, and no capacity could digest. Books could not easily be found, and the judges, poor in the midst of riches, were reduced to the exercise of their illiterate discretion." The emperors had very early begun to issue ordinances, under the authority of the various offices gathered into their hands; and these, together with the answers to appeals from the lower courts made to the emperors directly, or to the sort of supreme court which they established, were called imperial constitutions and rescripts. Justinian determined to unite in one body all the rules of law, whatever may have been their origin; and in the year 528 appointed ten jurisconsults, among whom was the celebrated Tribonian, to select and arrange the imperial constitutions and rescripts, leaving out what was obsolete or useless or contradictory, and to make such alterations as the circumstances required. This was called the Code, divided into twelve books, and comprising the constitutions from Hadrian to Justinian. It was published in fourteen months after it was undertaken.
Justinian thereupon authorized Tribonian, then quaestor, vir magnificus magisteria dignitate inter agentes decoratus,--"for great titles were now given to the officers of the crown,"to prepare, with the assistance of sixteen associates, a collection of extracts from the writings of the most eminent jurists, so as to form a body of law for the government of the empire, with power to select and omit and alter; and this immense work was done in three years, and published under the title of Digest, or Pandects. Says Lord Mackenzie:
"All the judicial learning of former times was laid under contribution by Tribonian and his colleagues. Selections from the works of thirty-nine of the ablest lawyers, scattered over two thousand separate treatises, were collected in one volume; and care was taken to inform posterity that three millions of lines were abridged and reduced in these extracts to the modest number of one hundred and fifty thousand. Among the selected jurists only three names belonged to the age of the republic,the civilians who flourished under the first emperors are seldom appealed to; so that most of the writers whose works have contributed to the Pandects lived within a period of one hundred years. More than a third of the whole Pandects is from Ulpian, and next to him the principal writers are Paulus, Papinian, Salvius Julianus, Pomponius, Q. Cervidius Scaevola, and Gaius. Though the variety of subjects is immense, the Digest has no claims to scientific arrangement. It is a vast cyclopedia of heterogeneous law badly arranged; everything is there, but everything is not in its proper place."
Neither the Digest nor the Code was adapted to elementary instruction; it was therefore necessary to prepare a treatise on the principles of Roman law. This was intrusted to Tribonian and two professors, Theophilus and Dorotheus. It is probable that Tribonian merely superintended the work, which was founded chiefly on the Institutes of Gaius, divided into four books. It has been universally admired for its method and elegant precision. It was intended merely as an introduction to the Pandects and the Code, and was entitled the Institutes.
The Novels, or New Constitutions, of Justinian were subsequently published, being the new ordinances of the Emperor and the changes he thought proper to make, and were therefore of high authority. The Code, Pandects, Institutes, and Novels of Justinian comprise the Roman law as received in Europe, in the form given by the school of Bologna, and is called the "Corpus Juris Civilis." Savigny says:
"It was in that form that the Roman law became the common law of Europe; and when, four centuries later, other sources came to be added to it, the Corpus Juris of the school of Bologna had been so universally received, and so long established as a basis of practice, that the new discoveries remained in the domain of science, and served only for the theory of the law. For the same reason, the Ante-Justinian law is excluded from practice."
After Justinian the old texts were left to moulder as useless though venerable, and they have nearly all disappeared. The Code, the Pandects, and the Institutes were declared to be the only legitimate authority, and alone were admitted to the tribunals or taught in the schools. The rescripts of the early emperors recognized too many popular rights to suit the despotic character of Justinian; and the older jurists, like the Scaevolas, Sulpicius, and Labeo, were distasteful from their sympathy with free institutions. Different opinions have been expressed by the jurisconsults as to the merits of the Justinian collection. By some it is regarded as a vast mass of legal lumber; by others, as a beautiful monument of human labor. After the lapse of so many centuries it is certain that a large portion of it is of no practical utility, since it is not applicable to modern wants. But again, no one doubts that it has exercised a great and good influence on moral and political science, and introduced many enlightened views concerning the administration of justice as well as the nature of civil government, and thus has modified the codes of the Teutonic nations that sprang up on the ruins of the old Roman world. It was used in the Greek empire until the fall of Constantinople. It never entirely lost authority in Italy, although it remained buried for centuries, till the discovery of the Florentine copy of the Pandects at the siege of Amalfi in 1135. Peter Valence, in the eleventh century, made use of it in a law-book which he published.
With the rise of the Italian cities, the study of Roman law revived, and Bologna became the seat from which it spread over Europe. In the sixteenth century the science of theoretical law passed from Italy to France, under the auspices of Francis I., when Cujas, or Cujacius, became the great ornament of the school of Bourges and the greatest commentator on Roman law until Dumoulin appeared. Grotius, in Holland, excited the same interest in civil law that Dumoulin did in France, followed by eminent professors in Leyden and the German universities. It was reserved for Pothier, in the middle of the eighteenth century, to reduce the Roman law to systematic order,one of the most gigantic tasks that ever taxed the industry of man. The recent discoveries, especially that made by Niebuhr of the long-lost work of Gaius, have given a great impulse to the study of Roman law in Germany; and to this impulse no one has contributed so greatly as Savigny of Berlin.
With the rise of the Italian cities, the study of Roman law revived, and Bologna became the seat from which it spread over Europe. In the sixteenth century the science of theoretical law passed from Italy to France, under the auspices of Francis I., when Cujas, or Cujacius, became the great ornament of the school of Bourges and the greatest commentator on Roman law until Dumoulin appeared. Grotius, in Holland, excited the same interest in civil law that Dumoulin did in France, followed by eminent professors in Leyden and the German universities. It was reserved for Pothier, in the middle of the eighteenth century, to reduce the Roman law to systematic order,one of the most gigantic tasks that ever taxed the industry of man. The recent discoveries, especially that made by Niebuhr of the long-lost work of Gaius, have given a great impulse to the study of Roman law in Germany; and to this impulse no one has contributed so greatly as Savigny of Berlin.
The great importance of the subject demands a more minute notice of the principles of the Roman law than the limits of this work properly allow. I shall therefore endeavor to abridge what has been written by eminent authorities, taking as a basis the late work of Lord Mackenzie and the learned and interesting essay of Professor Maine.
The Institutes of Justinian began with the law of persons, recognizing the distinction of ranks. All persons are capable of enjoying civil rights, but not all in the same degree. Greater privileges are allowed to men than to women, to freemen than to slaves, to fathers than to children.
In the eye of the law all Roman citizens were equal wherever they lived, whether in the capital or the provinces. Citizenship embraced both political and civil rights. Political rights had reference to the right of voting in the comitia; but this was not considered the essence of citizenship, which was the enjoyment of the connubium, and commercium. By the former the citizen could contract a valid marriage and acquire the rights resulting from it, particularly the paternal power; by the latter he could acquire and dispose of property. Citizenship was acquired by birth and by manumission; it was lost when a Roman became a prisoner of war, or had been exiled for crime, or became a citizen of another State. An unsullied reputation was required by law for a citizen to exercise his rights to their full extent.
The Roman jurists acknowledged all persons originally free by natural law; and while they recognized slavery, they ascribed the power of masters entirely to the law and custom of nations. Persons taken in war were considered at the absolute control of their captors, and were therefore, de facto, slaves; the children of a female slave followed the condition of their mother, and belonged to her master. But masters could manumit their slaves, who thus became Roman citizens with some restrictions. After the emancipation of a slave, he was bound to render certain services to his former master as patron, and if the freedman died intestate his property reverted to his patron.
Marriage was contracted by the simple consent of the parties, though in early times equality of condition was required. The lex Canuleia, A.U.C. 309, authorized connubium between patricians and plebeians, and the lex Julia, A.U.C. 757, allowed it between freedmen and freeborn. By the conventio in manum, a wife passed out of her family into that of her husband, who acquired all her property; without it, the woman remained in the power of her father, and retained the free disposition of her property. Polygamy was not permitted; and relationship within certain degrees rendered the parties incapable of contracting marriage. (These rules as to forbidden degrees have been substantially adopted in England.) Celibacy was discouraged. Concubinage was allowed, if a man had not a wife, and provided the concubine was not the wife of another man; this heathenish custom was abrogated by Justinian. The wife was entitled to protection and support from her husband, and she retained her property independent of him. On her marriage the father gave his daughter a dowry in proportion to his means, the management of which, with its usufruct during marriage, belonged to the husband; but he could not alienate real estate without the wife's consent, and on the dissolution of marriage the dos reverted to the wife. Divorce existed in all ages at Rome, and was very common at the beginning of the empire; to check its prevalence, laws were passed inflicting severe penalties on those whose bad conduct led to it. Every man, whether married or not, could adopt children under certain restrictions, and they passed entirely under paternal power. But the marriage relation among the Romans did not accord after all with those principles of justice which we see in other parts of their legislative code. The Roman husband, like the father, was a tyrant. The facility of divorce destroyed mutual confidence, and inflamed every trifling dispute; for a word or a message or a letter or the mandate of a freedman was quite sufficient to secure a separation. It was not until Christianity became the religion of the empire that divorce could not be easily effected without a just cause. This facility of divorce was a great stigma on the Roman laws, and the degradation of woman was the principal consequence. But woman never was honored in any Pagan land, although her condition at Rome was better than it was at Athens. She always was regarded as a possession rather than as a person; her virtue was mistrusted, and her aspirations were scorned; she was hampered and guarded more like a slave than the equal companion of man. But the progress of legislation, as a whole, was in her favor, and she continued to gain new privileges until the fall of the empire. The Roman Catholic Church regards marriage as one of the sacraments, and through all the Middle Ages and down to our own day the great authority of the Church has been one of the strongest supports of that institution, as necessary to Christianity as to civilization. We Americans have improved on the morality of Jesus, of the early and later Church, and of the great nations of modern Europe; and in many of our States persons are allowed to slip out of the marriage tie about as easily as they get into it.
Nothing is more remarkable in the Roman laws than the extent of paternal power. It was unjust, and bears the image of a barbarous age. Moreover, it seems to have been coeval with the foundation of the city. A father could chastise his children by stripes, by imprisonment, by exile, by sending them to the country with chains on their feet. He was even armed with the power of life and death. "Neither age nor rank," says Gibbon, "nor the consular office, could exempt the most illustrious citizen from the bonds of filial subjection. Without fear, though not without danger of abuse, the Roman legislators had reposed unbounded confidence in the sentiments of paternal love, and the oppression was tempered by the assurance that each generation must succeed in its turn to the awful dignity of parent and master." By an express law of the Twelve Tables a father could sell his children as slaves. But the abuse of paternal power was checked in the republic by the censors, and afterward by emperors. Alexander Severus limited the right of the father to simple correction, and Constantine declared the father who should kill his son to be guilty of murder. The rigor of parents in reference to the disposition of the property of children was also gradually relaxed. Under Augustus, the son could keep absolute possession of what he had acquired in war; under Constantine, he could retain any property acquired in the civil service, and all property inherited from the mother could also be retained. In later times, a father could not give his son or daughter to another by adoption without their consent. Thus this patria potestas was gradually relaxed as civilization advanced, though it remained a peculiarity of Roman law to the latest times, and was severer than is ever seen in the modern world. Fathers were bound to maintain their children when they had no separate means to supply their wants, and children were also bound to maintain their parents if in want. These reciprocal duties, creditable to the Roman lawgivers, are recognized in the French Code, but not in the English, which also recognizes the right of a father to bequeath his whole estate to strangers,a thing which Roman fathers had not power to do. The age when children attained majority among the Romans was twenty-five years. Women were condemned to the perpetual tutelage of parents, husbands, or guardians, as it was supposed they never could attain to the age of reason and experience. The relation of guardian and ward was strictly observed by the Romans. They made a distinction between the right to govern a person and the right to manage his estate, although the tutor or guardian could do both. If the pupil was an infant, the tutor could act without the intervention of the pupil; if the pupil was above seven years of age, he was considered to have an imperfect will. The youth ceased to be a pupil, if a boy, at fourteen; if a girl, at twelve. The tutor managed the estate of the pupil, but was liable for loss occasioned by bad management. He could sell movable property when expedient, but not real estate, without judicial authority. The tutor named by the father was preferred to all others.