Page:Catholic Encyclopedia, volume 9.djvu/111

 LAW 86 LAW

scope of this article; its most concise arrangement is nation of magistrates to formulate i;iTittcn laws,

to befoundinPothicr's^Pandectse: depoenisJ') In 303 decemvirs were appointed, and they agreed

II. History and Sources. — ^A. Its Developmeni. — upon ten tables during the first year of their magis-

The classic period of development of Roman Law was tracy, and two additional tables the second year. The

in the second and third centuries of oiu* era, and this is political object sought by the plebeians, namely, the

known to us for the greater part through the compila- lusing of both classes into one, was not attained:

tions of Justinian, in the sixth centiuy. In the form private rights, however, were given definite form,

given it by Justinian, the Roman Law, through the re- These laws of the Twelve Tables contained the ele-

vivaJ of the eleventh and twelfth centuries, spread ments from which, in process of time, the vast edifice

over Europe and became the foimdation of modern of private law was developed. European law. (2) From the Twelve Tables to Actium. — ^The law

The history of Roman law has been variously expanded rapidly and commensurately with tie ex- divided into periods. One division is into the Regal pansion of Rome in territory and civilization. The Period, from the foundation of the city, the Republi- jurists, however, had not yet the imperiumy or power can, until the time of Augustus, and, finally, the Im- of developing the law through judicial legislation, perial, closing with the legislation of Justinian in the The growth of law was simply the result of mterpre- year 1280 (a. d. 526) from the foundation of the city tation of the Twelve Tables. The jurists of this (Howe). Again, the lapse of almost 1000 years, from period were skilled lawyers who penetrated the spuit the Twelve Tables to the reign of Justinian, has been of the law, but were not free to aepart from it. The divided into three periods: the first, a. u. c. 303- few /^jFes passed by the people in assembly had practi- 648; the second a. u. c. 648-988, the splendid age cally little to do with private law. The Senate, which from the birth of Cicero to the reign of Alexander was really an administrative body, b^zan to assume Severus; the third, from Alexander to Justinian, in legislative powers, but this source of law was as yet which "the oracles of Jurisprudence were almost unimportant. The activity of the jurisconsults in mute" (Gibbon). A better division, and one which inter|)reting the Twelve Tables was the most con- more accurately corresponds with the growth of Ro- spicuous factor in the growth of private law, and their man political institutions, gives four periods : the first, labours were designated by the same term which desig- from the foundation of the city down to the laws of nated the Twelve Tables, i. e., jus civile. The Roman the Twelve Tables; the second, to the battle of Act- magistrate, however, did possess the imperium, and, ium (beginning of the empire) ; the third, from the whue at first he used it sparingly, he at length b^an battle of Actium to the accession of Diocletian; the to develop an equitable juris<Bction, giving remeaies fourth, from Diocletian to the death of Justinian in a limited numoer of cases where the fus civile gave (565). The first of these four periods is that of in- none. He proceeded cautiously and upon a rational fancy; the second, of adolescence; the third, of ma- theory, and!, since he could not introduce chaos into ture age; the fourth, of senility and decay (Ortolan; the law by varying it in the particular case, he antici- Staedtier). paled its defects in hypothetical cases and announced

(1) From the Foimdation of Rome to the Twelve the relief which he would give. The praetor made an

Tables. — Our knowledge of this period is largely con- announcement in an edict upon assuming magistracy:

jectural, from data furnished by the subsequent period, he was bound by his edict, yet he did not discard the

Roman history b^ns with pure myth and fable, then edicts of his predecessors, and in this sense the prsetor's

passes through a stage of blended fable and fact, and edict became an edictum perpetuum, i. e., permanent,

finally becomes history properly so called. The his- WTien experience showed the value of an innovation,

tory of Roman Law has no vital interest with the the praetor made it, and thus the honorary law became

petty communities and subordinate nationalities that a developing system, modified and improved from

were finally absorbed in the three ethnological ele- year to year. In the course of time it became volu-

ments, Latin, Sabine, and Etruscan, with which the minous. Most of the changes wrought by the praetor

dawn of Rome's legal history begins. Of these three were inroads (after the manner of the I^glish chan*

elements the Etruscan was more advanced in civiliza- cellors), upon the harsh rigour of the Twelve Tables,

tion, witii definite religious and political institutions The Twelve Tables were deferentially treated by the

(Ortolan). The only Etruscan text we have is that of praetor, whose functions were constructive, and not

the nymph Vegoia {lasa Veku)^ which recognizes the destructive, yet, by reason of his imperium^ he was not

right of property and protects it with the wrath of the bound by the jus civile in the drafting of his edict.

ds (Casati). It is customary to speak of certain Hence the praetor had the power to engraft upon Ro-

jes in the earliest historical period as leges regice: man law new ideas and new principles derived from

whether these were real statutes enacted during the the jus gentium. There were many non-citicens at

regal period or the mere formulation of customary Rome, and non-Roman relations were administered

law is disputed (Bruns, introd. note to " Leges Regiae by a special magistrate, called the praUor peregrinus,

in "Fontes Jur. Rom. Antiqui ")• There were some under a body of principles which were conceived to be

well established, though crude and radical, rules of common to all men. There was a naturalness and an

private law, such as the harsh paternal power and the equity in these principles in which all men were pre-

equally drastic right of the creditor over his unfortu- sumed to concur. This was in striking contrast with

nate aebtor. It may safely be affirmed that during the jus civile^ and the contact of legal ideas began to

this primitive period customary law was the only law. broaden and liberalize Roman law. This infiuence,

Pomponius says: " At the be^nning of our city, the however, had not yet overpowered the jus civile at the

people Degan their first activities without any fixed close of this second period.

law and without any fixed rights: all things were ruled (3) From Actium (31 b. c.) to Diocletian (d. a. d.

despotically by kings" (2, §1. D. 1. 2). In the next 313). — In this, the classic period, the science of law

paragraph he speaks of the so-called leges regixB as col- reached a high degree of perfection. Leges were very

lected and still extant in the book of Sextus Papirius. rare, and were usually measures of public policy to

Again, after the expulsion of the kings the people re- which some slight elements of private law were mci-

Borted to customary law. The great mass of historical dental ; such were the legislative measures rewarding

facts prove that there was no private law other than marriage and dealing wiui the emancipation of slaves

custom down until this period closed with the enact- (Staedtler). Senatus-consuUa, on the contrary, be-

ment of the Twelve Tables (Staedtler). The lack of a came of increasing importance, and, whereas at first

precise definition of their rights was the principal their constitutionsiity, so to speak, had been doubted,

grievance of the plebeians, and in a. u. c. 292 they were fully recognized as law. Other sources were

their tribune, Terentilius Arsa, proposed the nomi- the con^/t^u/tVmesprinctpum, or imperial constitutions;