the third, but did not, as Heineccius supposes, survive the sixth century of the Christian era. This code obtained, in the subsequent ages of the republic, from the most distinguished

philosophers, historians, and statesmen, the blind tribute 526 of patriotic veneration, and the most extravagant eulogy, as being a system inculcating the soundest principles of ethics and civil polity, and surpassing in value the jurisprudence of Solon and Lycurgus, the twelve books of the laws of Plato, and whole libraries of Grecian philosophy. (a) As Rome increased in territory, wealth, arts, and refinement, her laws were progressively enlarged and improved, and adapted to the progress of society, and its increasing wants and vices. The obligation of the twelve tables was gradually diminished or destroyed by the

Ceres. Stealing of what was devoted to the gods, and incest, were declared to be capital crimes.

The 12th table related to marriage and the rights of husbands. It prescribed freedom of divorce at the pleasure of the husband; and it allowed the husband, with the consent of his wife's relations, to put her to death, when taken in adultery or drunkenness; and it declared it to be unlawful for patricians to intermarry with plebeians.

Mr. Prescott, in his learned and excellent History of the Conquest of Mexico, has given a short but interesting view of the judicial system, and of the code of laws in the Aztec or Mexican monarchy, prior to the overthrow of it by Fernandez Cortez. He says that the Aztec code, though stamped with the ferocity of a rude people, evinced a profound respect for the great principles of morality. Their military usages had a remarkable resemblance to those of the early Romans, and their political institutions denoted a degree of civilization not much short of that enjoyed by the AngloSaxons under Alfred. I should think that their legal code might bear a favorable comparison with much that is to be found in the celebrated twelve tables of the Roman law. The superior judges were wholly independent of the monarch, and held their offices for life, and were maintained from the produce of the crown lands. Punishments were, generally, like the laws of Draco, capital; but their application to crimes showed a solicitude for the rights of property and good order. Murder, even of a slave, was punished with death; so was the conviction of adultery, removing the boundaries of another's land, altering the established measure, abuses of guardians' trust, drunkenness, prodigal waste of patrimony, and theft. Hospitals were established in the principal cities for the cure of the sick, and the permanent refuge of the disabled soldier. Public defaulters were liable to be sold as slaves. The marriage institution was protected and respected. Prescott's Hist. vol. i. pp. 29-38, 44, 49. (a) Cic. de Orat. b. 1, c. 43, 44. De Leg. 2, sec. 23. Livy's Hist. 3, 34. Tacit. Ann. 3, 27. A. Gell. Noct. Att. 20, 1. In the newly discovered treatise of Cicero, De Republica, lib. 2, c. 36, 37, he insists, that the ten first tables were composed with the greatest equity and prudence, but he declares that the two last tables, added by the decemvirs, were iniquitous laws, and that the law prohibiting marriages between plebeians and senatorial families was a most infamous law.

multitude of new regulations, and the history of the Roman law, from the time of the twelve tables to the reign of Hadrian, is eminently instructive.

*527 * After many struggles, the patricians were obliged, by the lex Hortensia, to submit to the authority of the plebiscita, enacted by the plebeians alone in their comitia tributa, as being of equal force with the leges, passed at the instance of a consular or senatorial magistrate, by the whole aggregate body of the people, patricians and plebeians. (a) The senate also frequently promulgated laws under the name of senatus consulta, by their own authority. (b) A senatus consultum was allowed to continue in force only one year, unless ratified by the common course of rogatio ad populum; and the tribunes could, at any time, by their veto, put a negative upon any projected decree of the senate. That body likewise assumed the right to dispense with laws, though, by a law proposed by the tribune Caius Cornelius, the senate could not exercise their dispensing power, unless two hundred senators were present. By the Publilian law, passed in the year of the city 416, the comitia of the curio were deprived of their veto or power as a branch of the legisla ture in passing upon laws enacted by the comitia of tribes, and their consent was no longer requisite to laws submitted by the senate to the comitia of the centuries. But the senate, which now consisted of the most eminent men, and was a mixed body of both patricians and commoners, continued to be the great national council. (c) Within a very few years after the adop

(a) The Hortensian law abolished the senate's veto upon plebiscita, after the Publilian law had done away with the authority of the curia respecting them; and Niebuhr considers the Hortensian law as the commencement of the destruction of the constitution. Niebuhr's Hist. vol. iii. 419-421.

(b) Inst. 1, 2, 4. Dig. 1, 2, 9. The proofs are abundant, that even before the Augustan age, the senatus consulta had become one of the regular sources of the Roman law. Cicero, De Legibus, b. 3. Histoire du Droit Rom. par G. Hugo, sec. 174, 175, 176. Qui consulta Patrum, qui leges juraque servat. Hor. Epist. 1, 16, v. 41.

(c) Arnold's Hist. of Rome, vol. ii. 155, 158. It was the province of the censors to revise the list of senators and add to the roll, as well as to revise the rolls of the several tribes. The censorship was an office of the highest rank and power, with a command of the public moneys, and with the power of commencing and conducting public works, such as roads and aqueducts. Id. 282-287. Cicero, De Legibus, b. 3. With respect to the senate, the Hortensian law, prior to the year of Rome 474, deprived the senate of its veto, and declared the people assembled in their tribes to be a supreme

tion of the twelve tables, the prohibition of marriages between the patricians and plebeians was abolished; but the patricians had the address to retain the management and control of the whole administration of justice. This was effected in several ways. It was effected by the institution of Legal forms. legal forms of judicial proceeding, called legis actiones, and by means of the pontifices, who regulated the calendar, and were the repositories of the laws and annals, and assumed the power of fixing the lawful days of business, and dies fasti et nefasti. These judicial forms and solemnities gave order and uniformity to the administration of justice; but they were mysteries of jurisprudence, confined to the learned of the patrician order, and locked up in the pontifical archives. They could not be changed at the pleasure of the people, and the right to interpret them belonged to the pontifical college, and the patricians had retained the exclusive right of being *528 eligible to the offices of the priesthood. (a) The forms remained confused and undigested until Appius Claudius Cœcus, a member of the pontifical fraternity, reduced them into one collection, which his scribe, Cnæus Flavius, surreptitiously published, together with the calendar, or fasti, to the great satisfaction of the people. (b) It acquired the title of the Jus civile Flavianum; and a second collection of these legal precedents afterwards appeared, and was called the Jus civile Ælianum. (c) This Roman science of special pleading became a subject of ridicule by Cicero, as being a cunning and captious verbal science; and these forms were expressly abolished by the Emperor Constantine as insidious. (d)

legislative power. The tribes in the forum and the senate were placed on a footing of equality; neither had a veto on the enactments of the other, and the tribunes had a veto upon both alike. The enactments of both were considered as equal to laws. The senate, in its original form, was only a select assembly of the patres, whose great assembly was the comitia curiata. Id. 383-385.

(a) Dig. b. 1, tit. 2. De Orig. Jur. sec. 6. Gravina says, De Ortu et Prog. J. C. sec. 33, that they were established by the policy of the ancient lawyers.

(b) Cic. pro. Muræna, sec. 11. De Orat. 1, 41.

(c) Dig. 1, 2, 7. Livy's Hist. 9, 46. Gravina, de Ortu Jur. Civ. sec. 33, and De Jur. Nat. et XII. Tab. sec. 79, 80.

(d) Leguleius quidam cautus et acutus præco actionum, cantor fabularum, auceps sylla barum. Cic. de Orat. 1, 55. See, also, Cod. 2, 58. De formulis et impetrationibus actionum sublatis.

Prætorian

law.

The edicts of the prætor became another very important means of the increase and improvement of the Roman law. By the Licinian law, passed in the year of Rome 384, the office of consul was no longer confined to the patrician order, and a plebeian consul was elected in the centuries, and confirmed by the curiæ. But as a compensation for this loss of patrician power, the judicial was separated from the consular office, and a prætor was instituted, who was always to be a patrician. (a) The judicial decisions of the prætors, or edicta prætorum, became of great consequence. They were called jus honorarium, or patrician law, derived from the honor of the prætor. (b) There had been, from the foundation of the city, a magistrate called præfectus urbis, to administer justice in the absence of the king or consul; and after the plebeians obtained a share in the consular dignity, the patricians created a permanent city prætor, and they confined his province to the administration of justice; and such a magistrate was indispensable, as the consuls were engaged in foreign and executive duties. (c) The prætor was at first a patrician, and *elected in the comitia centuriata, though the office in time became accessible to plebeians. Business soon required a second prætor to preside over the causes of foreigners, called prætor peregrinus, (d) and prætors were afterwards allotted to the provinces as the empire widened. Under Augustus the prætors had multiplied to sixteen; and in the time of Pomponius there were eighteen, and one of them judged de fideicommisso. (e) Every prætor, on entering into office, established

* 529

(a) Dr. Arnold gives an interesting history of the struggles which produced this great innovation in the Roman constitution. History of Rome, vol. ii. 33-61. The institution of the office of prætor was in A. U. C. 387.

(b) Dig. 1, 1, 7, and 1, 2, 10.

(c) Dig. 1, 2, sec. 26, 28.

(d) Professor Hugo, in his History of the Roman Law, sec. 158, attributes to the institution of the prætor peregrinus the rise and growth of the jus gentium, which had a propitious influence even upon the Roman municipal jurisprudence. The civilians used the jus gentium as synonymous with reason and natural law, and in contradistinction to the jus civile, which was considered as local, peculiar, and exclusive to one particular people. It was their municipal law; the other was international. To the authority of the jus prætorium, the edicts of the prator urbanus, and the prætor peregrinus, seem to have equally contributed. Ibid. sec. 188, 189.

(e) Dig. 1, 2, 32.

and published certain rules and forms, as the principle and method by which he proposed to administer justice for the year. He had no power to alter these rules, and this jus prætorium vel honorarium, tempered the ancient law by the spirit of equity and public utility, and it was termed the living interpreter of the civil law. (a) The edicts of the prætor were generally declaratory of the customary or unwritten law and practice of his predecessors. But as the prætor was apt to vary from his annual edict, and to change it according to circumstances, which opened the way to many frauds, it was provided, by a law enacted at the instance of the tribune Caius Cornelius, that the prætor should adhere to his edicts promulgated on the commencement of his magistracy. These prætorian edicts were studied as the most interesting branch of Roman law, and they became a substitute, for the knowledge of the twelve tables, which fell into neglect, though they had once been taught as a carmen necessarium, and regarded as the source of all legal discipline. (b)

* The opinions of lawyers, called the responsa, or inter- *530 pretationes prudentum, composed another and very effi- Responsa cient source of the ancient Roman jurisprudence. prudentum.

The most ancient interpreters were the members of the college of pontifices, composed of men of the first rank and knowledge. Civil statesmen and eminent private citizens followed their example, and sometimes debated in the forum. Their answers to questions put were gradually adopted by the courts of justice, by reason of their intrinsic equity and good sense; and they became incorporated into the body of the Roman common law under the name of fori disputationes, and jus civile, or responsa prudentum. (c) This business, undertaken gratuitously ⚫ by persons of the highest distinction, grew into a public profession,

(a) Dig. 1, 1, 7, 8.

(b) Cic. de Leg. b. 1, c. 5, and b. 2, c. 23. Cic. de Orat. b. 1, c. 10. Gravina de Ortu et Prog. J. C. sec. 38. The Edicta Magistratuum or Jus Prætorium, was not only a fruitful, but a legitimate source of the Roman law, as Hugo has labored to prove. Hist. du Droit Rom. sec. 177, 178, 179. He compares this prætorian law to the English equity jurisprudence. Many of the edicts bore a resemblance to the modern ordinances, or Codes de Procedure Civile.