HISTORY AND PRINCIPLES OF THE

CIVIL LAW.

INTRODUCTION.

IF the era of Augustus has appeared to some signally fitted for the manifestation of a religion for the civilized world, a law for that world was consolidated and republished by Justinian in times scarcely less suitable for its reception and spread. The Eastern empire still retained its unbroken unity and that concentrated system of administration which had been impressed upon it by Diocletian and Constantine; while the Western empire, though shattered and dislocated, was still disciplined by the Theodosian code embodied in the barbarian legislation, and so was retained within those grooves of the older Roman law from which its progeny, the States of Europe, would never depart. It was only for a short period, indeed, that the old unity of the East and West was galvanized into life by Justinian; but the period was long enough to admit of the promulgation of the Digest, the Institutes, the Code, and the Novells throughout Italy, a soil kept receptive of purely Roman influences by the enlightened policy of Theodoric and Cassiodorus.

It was not, however, only the continuing imperial unity and administrative inter-dependence of the parts of the world in which Justinian's laws were published that aided their rapid diffusion, and that made them take so deep and so lasting a root. Since the days of Gaius and the brilliant line of jurists in the second century, and even since

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the time of Theodosius II. in the fifth, the quality of the law itself had undergone radical changes, which peculiarly fitted it for universal diffusion and easy reception. It had cast off nearly all that was exclusively and narrowly Roman, and had acquired the cosmopolitan lineaments due only to logical and common political needs. It was becoming, in a higher sense than in the early days of the Republic, a true jus civile or "civil law," adapted to the world just in proportion to the degree in which that world grew civilized.

The old learning relating to the distinction between Roman, Italian, and foreigner; between freedman of one order or of another and citizen; between persons married according to different formalities; had dropped away. The old and long-cherished ceremonies, of peculiarly Roman birth, of mancipatio, the sacramentum, vindicatio, the legal actio, and even the interdictum, and the more technical parts of the formalities of the stipulatio, were remembered only in antiquarian literature and in allusions in the registered opinions of the older jurists. The laws of inheritance, of succession, and of procedure were completely remodelled from their foundation, chiefly by Justinian himself. The more enlightened doctrines,-capable still indeed of indefinite improvement,-relating to slavery and manumission, had introduced chapters wholly new into the legal system. The organization of the Christian Church had been laid under tribute for the purposes of legal administration; and while one class of laws invites or demands the co-operation of the bishops and clergy and the use of sacred edifices for the more effectual execution of the laws, another class relates to the disabilities, privileges, or shortcomings of every class of ecclesiastical ministers.

It is thus clear, from even this summary survey, that by Justinian's time, and quite apart from the extraordinary influence due to his own work of expurgation and compilation, the law of the empire had been gradually amended and transmuted in such a way as well to fit it for a new and more extended enterprise.

Then, again, in Justinian's time, the Roman language of law, though debased-as is clearly shown by comparing the

terms of any passage of Gaius' Institutes with the terms of the amending passage in Justinian's Institutes-was still equal to its purpose, and was intelligible throughout the bulk of the populations affected by the law. The intensely centralized administration and the current system of judicial procedure and appeals tended to keep the Latin tongue, if not everywhere a vulgar dialect, at all events a necessary accomplishment for all aspirants to office.

At the same time the Greek language, which, in Constantinople and all the chief ports of Asia Minor, in Greece itself, in Syria, and in Alexandria, was the language of the market-place, the exchange, and, as it would seem, the polite coterie, afforded a secondary vehicle for the diffusion of Justinian's laws. It is sufficient to conclude these remarks by noticing that of the two most authoritative texts of his Novells (that is, his numerous constitutions published after his main compilations were completed), one is in Latin and the other in Greek.

It may be observed, by the way, that the interval of a century between the legislation and victories of Justinian and the legislation and victories of the Caliphs was just sufficient to enable the law as settled by Justinian to take root in the Eastern provinces, afterwards subjugated by the Arabs, and to evolve, through the schools of law and the ubiquitous system of administration, a type on which the Arab legislation was, as will be shown on a later page, manifestly founded. The law was thus prepared to be co-extensive with the reach of Mahommedan, as it already was with that of Christian, influence.

This consideration of the peculiar circumstances of Roman law at the era of Justinian at once demonstrates the impropriety of treating the subject without regard to the period of time concerned. The history of Roman law from the XII. Tables to the legislation of Justinian covers a period of nearly a thousand years. The progress of the law throughout all this time can be traced step by step, although the authorities for the state of the law are much more numerous and copious at one time than at another.

Thus, there are preserved in the writings of the

Roman historians, and on the older monuments, clear indications of the state and working of the law in the early days of the republic and also at every chief epoch in the development of its history, such as those of the several Secessions of the Plebs, of the Punic wars, of the reforms of the Gracchi, and of the revolutions of Marius, Sulla, Pompey, and Cæsar. The law at the close of the republic is repeatedly alluded to in Cicero's speeches, his essays, and his letters. The writers of the early empire, such as Tacitus, Suetonius, Plutarch, Aulus-Gellius, and others less well known, give abundant testimony to the state of the law at the beginning of the empire and up to the times of the writings of the great jurists of the Antonine period.

From this era the description of the progress of the law is exact and continuous. The writings which survive of Gaius, Ulpian, and Paul, at the end of the second and the beginning of the third century, throw a clear light on the law of their day. The Gregorian and Hermogenian codes mark the progress made a century further on. The Theodosian code, the Vatican fragments, and other invaluable relics carry the history on to the middle of the fifth century. During all this period, beginning with the latter days of the republic, inscriptions, which are now being discovered in such plenty, illustrate or reveal the state of the law to which they refer, especially as it operated in the provinces. The so-called "Barbarian codes," and the legislation and codification of Justinian in the first part of the sixth century, further mark an epoch of the utmost significance in the evolution of the law; but, by the very nature of the extracts embodied in Justinian's Digest and the continuity of the enactments collected in his Code, a full and bright light is thrown back on the state of the law as it was during a long series of preceding epochs.

Thus nothing could be more misleading or false than to speak of "Roman law," as if the term represented an abiding entity knowing no change. The history of Roman law is, indeed, the history-political, social, and moral-of the Roman people; and therefore it is not less inopportune to speak of the Roman constitution or the extent of the