brated 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 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, 10 8 7 This threefold division of the law was applied to the three Roman kings by Justus Lipsius (Opp. tom. iv. p. 279); is adopted by Gravina (Origines Juris Civilis, p. 28, edit. Lips. 1737); and is reluctantly admitted by Mascou, his German editor. 8 The most ancient Code or Digest was styled Jus Papirianum, from the first compiler, Papirius, who flourished somewhat before or after the Regifugium (Pandect. 1. i. tit. ii.). The best judicial critics, even Bynkershoek (tom. i. p. 284, 285), and Heineccius (Hist. J. C. R. 1. i. c. 16, 17, and Opp. tom. iii. sylloge iv. p. 1-8), give credit to this tale of Pomponius, without sufficiently adverting to the value and rarity of such a monument of the third century of the illiterate city. I much suspect that the Caius Papirius, the Pontifex Maximus, who revived the laws of Numa (Dionys. Hal. 1. iii. p. 171 [c. 26]), left only an oral tradition; and that the Jus Papirianum of Granius Flaccus (Pandect. 1, tit. xvi. leg. 144) was not a commentary, but an original work, compiled in the time of Cæsar (Censorin, de Die Natali, 1. iii. p. 13. Duker de Latinitate J. C. p. 157). [The inference from the passage in Dionysius seems to be that the Jus Papirianum was compiled under Tarquinius Superbus. The leges regiae were abolished by a lex tribunicia. some of them were in force in B.C. 367. Cp Livy, 6, 1.] Yet A pompous, though feeble, attempt to restore the original is made in the Histoire de la jurisprudence Romaine of Terrasson, p. 22-72, Paris, 1750, in folio: a work of more promise than performance. 10 In the year 1444, seven or eight tables of brass were dug up between Cortona and Gubbio. A part of these, for the rest is Etruscan, represents the primitive state of the Pelasgic letters and language, which are ascribed by Herodotus to that district of Italy (1. i. c. 56, 57, 58); though this difficult passage may be The twelve tables of the Decemvirs I shall not repeat the well-known story of the Decemvirs," who sullied by their actions the honour of inscribing on brass, or wood, or ivory, the TWELVE TABLES of the Roman laws.12 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 neighbours. 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.1 The names and the divisions of the copper-money, the sole coin of the infant state, were of Dorian origin; 14 the harvests of Campania and Sicily relieved the wants of a people whose agriculture was often interrupted by war and faction; and, since the trade was established,15 the deputies who sailed from the Tiber might return from the same harbours with a more 13 The explained of a Crestona in Thrace (Notes de Larcher, tom. i. p. 256-261). 11 Compare Livy (1. iii. c. 31-59) with Dionysius Halicarnassensis (1. x. p. 644 [c. 55], xi. p. 691 [c. 1]). How concise and animated is the Roman-how prolix and lifeless is the Greek! Yet he has admirably judged the masters, and defined the rules, of historical composition. 12 From the historians, Heineccius (Hist. J. R. 1. i. No. 26) maintains that the twelve tables were of brass--aereas: in the text of Pomponius we [rightly] read eboreas; for which Scaliger has substituted roboreas (Bynkershoek, p. 286). Wood, brass, and ivory might be successively employed. 13 His exile is mentioned by Cicero (Tusculan. Quæstion, v. 36); his statue [in the comitium] by Pliny (Hist. Nat. xxxiv. 11). The letter, dream, and prophecy of Heraclitus are alike spurious (Epistolæ Græc. Divers. p. 337). [Cp. also Strabo, 14, 25, and John Lydus, de Mag. 1, 34.] 14 This intricate subject of the Sicilian and Roman money is ably discussed by Dr. Bentley (Dissertation on the Epistles of Phalaris, p. 427-479), whose powers in this controversy were called forth by honour and resentment. 15 The Romans, or their allies, sailed as far as the fair promontory of Africa (Polyb. 1. iii. p. 177, edit. Casaubon, in folio). Their voyages to Cumæ, &c. are noticed by Livy and Dionysius. -precious cargo of political wisdom. The colonies of Great Greece had transported and improved the arts of their mothercountry. Cuma and Rhegium, Crotona and Tarentum, Agrigentum and Syracuse, were in the rank of the most flourishing E cities. The disciples of Pythagoras applied philosophy to the use of government; the unwritten laws of Charondas accepted the aid of poetry and music; 16 and Zaleucus framed the republic of the Locrians, which stood without alteration above two hundred years. 17 From a similar motive of national pride, both Livy and Dionysius are willing to believe that the deputies of Rome visited Athens under the wise and splendid administration of Pericles; and the laws of Solon were transfused into the Twelve Tables. If such an embassy had indeed been received from the barbarians of Hesperia, the Roman name would have been familiar to the Greeks before the reign of Alexander; 18 and the faintest evidence would have been explored and celebrated by the curiosity of succeeding times. But the Athenian monuments are silent; nor will it seem credible that the patricians should undertake a long and perilous navigation to copy the purest model of a democracy. In the comparison of the tables of Solon with those of the Decemvirs, some casual resemblance may be found; some rules which nature and reason have revealed to every society; some 16 This circumstance would alone prove the antiquity of Charondas, the legislator of Rhegium and Catana, who, by a strange error of Diodorus Siculus (tom. i. l. xii. p. 485-492 [c. 11]), is celebrated long afterwards as the author of the policy of Thurium. 17 Zaleucus, whose existence has been rashly attacked, had the merit and glory of converting a band of outlaws (the Locrians) into the most virtuous and orderly of the Greek republics (see two Mémoires of the Baron de St. Croix, sur la Législation de la Grande Grèce; Mém. de l'Académie, tom. xlii. p. 276-333). But the laws of Zaleucus and Charondas, which imposed on Diodorus and Stobæus, are the spurious composition of a Pythagorean sophist, whose fraud has been detected by the critical sagacity of Bentley (p. 335-377). 18 I seize the opportunity of tracing the progress of this national intercourse: I. Herodotus and Thucydides (A.U.C. 300-350) appear ignorant of the name and existence of Rome (Joseph. contra Apion. tom. ii. l. i. c. 12, p. 444, edit. Havercamp). 2. Theopompus (A.U.C. 400, Plin. iii. 9) mentions the invasion of the Gauls, which is noticed in looser terms by Heraclides Ponticus (Plutarch in Camillo, p. 292, edit. H. Stephan. [c. 16]). 3. The real or fabulous embassy of the Romans to Alexander (A.U.C. 430) is attested by Clitarchus (Plin. iii. 9), by Aristus and Asclepiades (Arrian, 1. vii. p. 294, 295 [c. 15]), and by Memnon of Heraclea (apud Photium, cod. ccxxiv. p. 725); though tacitly denied by Livy. 4. Theophrastus (A.U.C. 440) primus externorum aliqua de Romanis diligentius scripsit (Plin. iii. 9). 5. Lycophron (A.U.C. 480-500) scattered the first seed of a Trojan colony and the fable of the Æneid (Cassandra, 1226-1280): Γῆς καὶ θαλάσσης σκῆπτρα καὶ μοναρχίαν A bold prediction before the end of the first Punic war. Their character and in fluence proofs of a common descent from Egypt or Phoenicia.19 But in all the great lines of public and private jurisprudence, the legislators of Rome and Athens appear to be strangers or adverse to each other. Whatever might be the origin or the merit of the twelve tables, 20 they obtained among the Romans that blind and partial reverence which the lawyers of every country delight to bestow on their municipal institutions. The study is recommended by Cicero 21 as equally pleasant and instructive. "They amuse the mind by the remembrance of old words and the portrait of ancient manners; they inculcate the soundest principles of government and morals; and I am not afraid to affirm that the brief composition of the Decemvirs surpasses in genuine value the libraries of Grecian philosophy. How admirable," says Tully, with honest or affected prejudice, "is the wisdom of our ancestors! We alone are the masters of civil prudence, and our superiority is the more conspicuous, if we deign to cast our eyes on the rude and almost ridiculous jurisprudence of Dracon, of Solon, and of Lycurgus." The Twelve Tables were committed to the memory of the young and the meditation of the old ; they were transcribed and illustrated with learned diligence; they had escaped the flames of the Gauls, they subsisted in the age of Justinian, and their subsequent loss has been imperfectly restored by the labours of modern critics.22 But, although these venerable monuments were considered as the rule of right and the fountain of justice, 23 they were overwhelmed by the weight and variety of new laws, which, at the end of five centuries, became a grievance more intolerable than the vices 19 The tenth table, de modo sepulturæ, was borrowed from Solon (Cicero de Legibus, ii. 23-26): the furtum per lancem et licium conceptum is derived by Heineccius from the manners of Athens (Antiquitat. Rom. tom. ii. p. 167-175). The right of killing a nocturnal thief was declared by Moses, Solon, and the Decemvirs (Exodus, xxii. 3. Demosthenes contra Timocratem, tom. i. p. 736, edit. Reiske, Macrob. Saturnalia, 1. i. c. 4. Collatio Legum Mosaicarum et Romanarum, tit. vii. No. 1, p. 218, edit. Cannegieter). 20 Вpaɣews kai ȧrepirTws is the praise of Diodorus (tom. i. 1. xii. p. 494 [c. 26]), which may be fairly translated by the eleganti atque absolutâ brevitate verborum of Aulus Gellius (Noct. Attic. xxi. 1). 21 Listen to Cicero (de Legibus, ii. 23) and his representative Crassus (de Oratore, i. 43, 44). 22 See Heineccius (Hist. J. R. No. 29-33). I have followed the restoration of the xii tables by Gravina (Origines J. C. p. 280-307) and Terrasson (Hist. de la Jurisprudence Romaine, p. 94-205). [There is a convenient text of the fragments of the xii. tables in Gneist's Institutionum et Regularum juris Romani Syntagma.] 23 Finis æqui juris (Tacit. Annal. iii. 27). Fons omnis publici et privati juris (T. Liv. iii. 34). of the city.24 Three thousand brass plates, the acts of the senate and people, were deposited in the Capitol; 25 and some of the acts, as the Julian law against extortion, surpassed the number of an hundred chapters. 26 The Decemvirs had neglected to import the sanction of Zaleucus, which so long maintained the integrity of his republic. A Locrian who proposed any new law stood forth in the assembly of the people with a cord round his neck, and, if the law was rejected, the innovator was instantly strangled. people The Decemvirs had been named, and their tables were Laws of the approved, by an assembly of the centuries, in which riches preponderated against numbers. To the first class of Romans, the proprietors of one hundred thousand pounds of copper,27 ninetyeight votes were assigned, and only ninety-five were left for the six inferior classes, distributed according to their substance by the artful policy of Servius. But the tribunes soon established a more specious and popular maxim, that every citizen has an equal right to enact the laws which he is bound to obey. Instead of the centuries, they convened the tribes; and the patricians, after an impotent struggle, submitted to the decrees of an assembly in which their votes were confounded with those of the meanest plebeians. Yet, as long as the tribes successively passed over narrow bridges, 28 and gave their voices 24 De principiis juris et quibus modis ad hanc multitudinem infinitam ac varietatem legum perventum sit altius disseram (Tacit. Annal iii. 25). This deep disquisition fills only two pages, but they are the pages of Tacitus. With equal sense, but with less energy, Livy (iii. 34) had complained in hoc immenso aliarum super alias acervatarum legum cumulo, &c. 25 Suetonius in Vespasiano, c. 8. 26 Cicero ad Familiares, viii. 8. 27 Dionysius, with Arbuthnot and most of the moderns (except Eisenschmidt de Ponderibus, &c. p. 137-140), represent the 100,000 asses by 10,000 Attic drachmæ, or somewhat more than 300 pounds sterling. But their calculation can apply only to the later times, when the as was diminished to th of its ancient weight, nor can I believe that in the first ages, however destitute of the precious metals, a single ounce of silver could have been exchanged for seventy pounds of copper or brass. A more simple and rational method is to value the copper itself according to the present rate, and, after comparing the mint and the market price, the Roman and avoirdupois weight, the primitive as or Roman pound of copper may be appreciated at one English shilling, and the 100,000 asses of the first class amounted to 5000 pounds sterling. It will appear, from the same reckoning, that an ox was sold at Rome for five pounds, a sheep for ten shillings, and a quarter of wheat for one pound ten shillings (Festus, p. 330, edit. Dacier. Plin. Hist. Natur. xviii. 4): nor do I see any reason to reject these consequences, which moderate our ideas of the poverty of the first Romans. 28 Consult the common writers on the Roman Comitia, especially Sigonius and Beaufort. Spanheim (de Præstantiâ et Usu Numismatum, tom. ii dissert. x. p. 192, 193) shews, on a curious medal, the Cista, Pontes, Septa, Diribitor, &c. |
