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 THE STUDY OF OLD GREEK LAW

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THE STUDY OF OLD GREEK LAW BY FREDERIC EARLE WHITAKER, PH. D. THE powerful genius of the classic Greek in literature, philosophy, and art is the wonder of the modern world. In the realm of jurisprudence, however, not withstanding the great names of Lycurgus and Solon; Antiphon, the master of criminal law; Isaeus, the expert on the law of In heritance; and Demosthenes, the greatest orator of the legal world, Hellenic law is esteemed little and studied still less. The reason for this is not far to seek, and lies in the fact that Roman law has seemed to be the sole repository and even fountainhead of ancient jurisprudence. But Roman law was not an instantaneous product, coming to perfection at a single bound; the roots of her system lay deep and reached out and back to the Old Hellas, her creditor in this as well as in those other indispensables of her power and glory. The laws of the "XII Tables" were not uninfluenced by Hellenic statutes, notably the Solonian laws of Athens. Though it has been the custom, following the iconoclastic tendency of some of our modern critics, to set aside all early Roman history, however firmly established in the minds of the intelligent Romans of late historical times, we are coming to see that the probabilities point to the Greek origin of these basal laws of Rome. The first steps towards the compilation of this ancient code were taken in the year 452 B.C., three hundred years after the founding of the city of Rome, when the contest between the senators and tribunes, representing respectively the patricians and plebeians, had resulted so unsatifactorily for the popular party that the tribunes pro posed a non-partisan commission to draw up laws ensuring their mutual liberties. The commission, consisting of Spurius Postumius Albus, Aulus Manlius and Publius

Sulpicius Camerinus, was dispatched to Greece and the Greek settlements in South ern Italy, with orders to copy the laws of Solon, to study the statute law and legal customs, and in general to collect any ma terials that might be of service in the com pilation of the projected code (Livy, Hist., Book III, cap. 31). Professor Muirhead of the University of Edinburgh, author of one of the most authoritative works on Roman Law, has said in this connection: "It may well be doubted whether the embassy ever went so far as Athens. It was quite un necessary that it should, seeing how easily transcripts of Greek legislation were to be obtained in Cumae and other Ionic colonies not far from home as well as in the Greek settlements in Lower Italy and Sicily " (Ro man Law, Edinburgh, 1886.' Sect. 21, cp. 2, "XII Tables"). In 450 в. с. the commission having re turned, the three delegates above mentioned were appointed on the board, as the people "believed that those skilled in the laws of foreign countries would be useful in compil ing new ones at home." This board, under the presidency of Appius Claudius, was in vested with consular powers for the express purpose of reducing the laws to writing. "In this task they had the assistance as in terpreter of one Hermodorus (Cicero, Tuse. Disput. V 36; Strabo, p. 642; Pliny, Nat. Hist. XXXIV, 5, n), whose presence seems to confirm the narrative of the previous collection of Greek material " (Roman Law, Muirhead, Note p. 2). The result was the ten tables of the Decemviral Law, to which two tables were subsequently added, mak ing the celebrated law of the XII Tables; and "amidst the vast heap of accumulated laws" existent in Livy 's time, this old code, founded and grounded on the laws of Greece,