« PreviousContinue »
THE ORIGINS AND DEVELOPMENT OF
By DR. EDSON L. WHITNEY
(Professor of Roman Law, National University.)
THE Roman Law studied today is that form of the
system as it appeared in the sixth century of the Christian era when the Emperor Justinian caused the law to be published in an intelligible form. The written law was codified in the year 527 and the unwritten was digested in the year 533, six months after the appearance of the Institutes, a book prepared mainly for the use of law students and giving the essentials of the law as it existed at that time.
Studying as we do the Institutes, which have come down to us complete, and looking casually at the few individual and often unrelated items in the Codex and Digest which have been spared to us, we are often led to think of Roman Law as a system that had always existed in the form in which we now see it. Little do we realize the scattered condition of the law previous to the issue of the Justinian books. Rarely do we pause to consider and examine the nooks, corners, crannies and crevices in which germinated the many seeds that in their development produced that system which today is the basis of the law in every nonEnglish-speaking Christian country.
Perhaps the reason why Roman Law is so generally and satisfactorily accepted today is because of the cosmopolitanism of its contents. Its structure is Roman, but its filling is taken from many nations. History does not tell us whence came these people who settled on the banks of the Tiber. Philology and ethnology, however, tell us that they were allied with the Greeks and that both are members of the Aryan family of nations, thus leading us to look to India for the origin of the fundamentals in Roman Law, and there we find many of them.
Located on the Tiber, near enough to the sea to have easy access to it, yet sufficiently far from it to be protected from the depredations of the pirates on the coast, at the
narrows of the river which by easy bridging gave access to the adjacent territory on the other side of the river, at the base of the foothills which enabled it to have communication with the nomads, on the edge of a fertile plain easily accessible to farmers, Rome early became an emporium catering to the farmers of the plain, the shepherds of the hills, and the nations to the north. People early drifted to the city and the law assumed a cosmopolitan character in the prehistoric era.
Very little is known of the law of Rome, however, from the reputed founding of the city, 753 B. C., to the establishment of the republic, 510 B. C. During this time the law consisted of two distinct groups: the customary law, brought by the first settlers of the district, traceable to some extent to its eastern origin, yet recognized and followed by everybody; and secondly, the assembly law, lex as the Romans called it, consisting of such changes in the customary law as were made by the freemen at their gatherings from time to time.
This gathering of the people into assemblies was coeval with the founding of Rome. The people settled by groups, clans or villages, gentes they were called, composed of several families tracing their ancestry back to a common origin. Other gentes settled in their vicinity until in time their number reached thirty, all having many interests in common and claiming a community of descent. Together they formed a political community with a yearly meeting for religious and social purposes, a meeting composed at first of all who came, but later it became a delegated body representing the various gentes, who discussed matters pertaining to the common welfare of all. In time it became a legislative body changing the customary laws at will with a seat of justice in the temple, a safe shelter in time of war, and punishing violations of federal laws.
With the grouping of the thirty gentes into a united state came the king, a personage made necessary by the growth of the state and bearing a relation to it similar to that of the pater familias in the family. The pater familias ruled his hou sehold as he would, meted out justice to its members, consulted the elder or wiser members, followed their
advice, and governed unhampered by none.
The power of the king, however, was more circumscribed. He did nothing of importance without first consulting the senate a body of three hundred representing the heads of the various families. He nominated the priests, made treaties with foreign peoples, kept the keys of the public treasury, sat in judgment in court, inflicted penalties for breaches of order, and could reduce a citizen to slavery or banish him from the city. An appeal, however, lay from the acts of the king to the people in assembly, for he administered the law only. He could not alter it. That was a prerogative of the citizen body.
No matter, except appeals, could be considered by the citizens, except such as the king chose to lay before them, after consulting with and gaining the approval of the senate. Furthermore, no meeting of the people could be called to consider a proposed law without the consent of the priests, who alone were supposed to know the will of the gods.
Thus the ancient customary law of the Romans could be changed only with the concurrence of four bodies—the king, who, representing in a way the government of Rome, proposed the law; the senate, who, representing the older portion of the community, advised in favor of the law; the freemen, who, in the gathering that occurred at regular intervals, voted for the law; and the priests, who, by assenting to the calling of the meeting, professed to make known the will of the gods. Two of these bodies—the king and the people acted positively, and two-the senate and the priests-acted negatively.
Thus it may be said with a fair degree of truth that the fountain of the law during the period under consideration was the king. Not only was he the proposer of the laws but he was the executor of them, for he sat in court in the more important cases and appointed the magistrates who heard the less important.
Law and religion thus went hand in hand. The priests were the only educated people of the day. The written laws were in their possession and the unwritten law was known only to them. The interpretation of the laws was made by
them, and interpretation then as now often nullified the laws.
Such were the origins of the early Roman Law-customs brought from the East, influenced by Greece on the way, and developed in the central part of Italy by farmers, traders, and merchants, acting in four concurrent groups -(the people, the nobility, the priests, and the king)-all representing but one class—the patricians, who as freedmen and citizens, alone had the right of suffrage.
The masses were slaves or clients, often superior in intelligence, ability and wealth to the burgher class, though without political or social rights. The time came when it was imprudent longer to deny them their rights. A reform followed, when or how is not known, but it is commonly attributed to Servius Tullius, who is said to have been king of Rome between the years 578 and 534 B. C. The part of these reforms that is of interest to us related to the regrouping of the citizens, to the admission into their fold of the wealthier of the non-citizen class, giving them al the rights possessed by the patricians.
The new citizens were not admitted into the old assembly, but were formed into a new. The old assembly, called the comitia curiata and composed of patricians exclusively, continued to meet and take action on matters referred to it by the king. The new assembly, called the comitia centuriata and composed of patricians and plebians voting in groups according to wealth, was called together by the king to consider such matters as were deemed fitting for it to consider. In other words, the change was one of form mainly and was planned to permit a share in the government to be given wealthy non-citizens without offending the susceptibilities of the patricians. Thus two separate bodies now legislated in the interests of Rome, instead of one as before. The only change caused by the expulsion of the kings in 510 B. C., was to transfer the royal powers, prerogatives, rights, and duties from the kings to the new annually elected officials called consuls.
The next change followed the secession of the plebians or non-citizen class to Mons Sacer in the year 494 B. C., when they secured an official to represent their interests
and the creation of a body, known as the comitia tributa, or assembly of the plebians. This made the third assembly representing the people. The first represented the patricians or old families; the second represented the wealthy families of Rome; and the third represented the hitherto non-voting class of the plebians. Laws passed by one of the assemblies were not necessarily binding on members of the other two. The laws were unwritten and were known to but few people the priests and magistrates, who were believed by the common people to shape the law to suit themselves and their own interests.
In response to a popular clamor a committee was appointed to revise and write the law. The result was that body of laws known as the Twelve Tables which appeared in the year 451 B. C. It was not a codification of existing law nor was it a new system introduced from abroad. It was a statement of a few old principles, about which there had been some difference of opinion, with the addition of a few new principles borrowed from the Greeks. Principles of the law well known to everybody were not included in the tables and continued to be unstated. The Twelve Tables received the sanction of the comitia centuriata and thus became law. Arbitrary decisions by the patricians then came to an end.
The Twelve Tables later came to be considered the statutory law of Rome, to be changed only by direct legislation, while the unstated law was an unwritten law easily subject to change to suit the views of the various magistrates. Both together were known as the jus civile, the civil law, that is, the law applicable to Roman citizens.
During the next two centuries Rome gained control of all Italy. In the meantime the patricians as a class declined in influence. Their body, the comitia curiata, became reduced to a mere form. Its legislative powers disappeared, being absorbed by the comitia centuriata, representing the wealthier portion of the state. The latter body likewise in time became secondary to the comitia tributa, which represented the popular element. The third body was presided over by the tribunes, who often forbade the consuls to summon the more aristocratic body or to