Idea Of The Roman Jurisprudence.

Part I.

Idea Of The Roman Jurisprudence. -- The Laws Of The Kings -- The Twelve Of The Decemvirs. -- The Laws Of The People. -- The Decrees Of The Senate. -- The Edicts Of The Magistrates And Emperors -- Authority Of The Civilians. -- Code, Pandects, Novels, And Institutes Of Justinian: -- I. Rights Of Persons. -- II. Rights Of Things. -- III. Private Injuries And Actions. -- IV. Crimes And Punishments.

The vain titles of the victories of Justinian are crumbled into dust; but the name of the legislator is inscribed on a fair and everlasting monument. Under his reign, and by his care, the civil jurisprudence was digested in the immortal works of the Code, the Pandects, and the Institutes: the public reason of the Romans has been silently or studiously transfused into the domestic institutions of Europe, , and the laws of Justinian still command the respect or obedience of independent nations. Wise or fortunate is the prince who connects his own reputation with the honor or interest of a perpetual order of men. The defence of their founder is the first cause, which in every age has exercised the zeal and industry of the civilians. They piously commemorate his virtues; dissemble or deny his failings; and fiercely chastise the guilt or folly of the rebels, who presume to sully the majesty of the purple. The idolatry of love has provoked, as it usually happens, the rancor of opposition; the character of Justinian has been exposed to the blind vehemence of flattery and invective; and the injustice of a sect (the Anti-Tribonians,) has refused all praise and merit to the prince, his ministers, and his laws. Attached to no party, interested only for the truth and candor of history, and directed by the most temperate and skilful guides, I enter with just diffidence on the subject of civil law, which has exhausted so many learned lives, and clothed the walls of such spacious libraries. In a single, if possible in a short, chapter, I shall trace the Roman jurisprudence from Romulus to Justinian, appreciate the labors 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.

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 curi 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 a 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 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.

I shall not repeat the well-known story of the Decemvirs, who sullied by their actions the honor of inscribing on brass, or wood, or ivory, the Twelve Tables of the Roman laws. 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 the city; and the Romans had emerged from Barbarism, since they were capable of studying and embracing the institutions of their more enlightened neighbors. 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.