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enter with just diffidence on the subject of civil law, which has exhausted so many learned lives, and clothed the walls of such spacious libraries. In a single, if possible in a short, chapter, I shall trace the Roman jurisprudence from Romulus to Justinian, appreciate the labors of that emperor, and pause to contemplate the principles of a science so impor tant to the peace and happiness of society. The laws of a nation form the most instructive portion of its history; and, although I have devoted myself to write the annals of a declining monarchy, I shall embrace the occasion to breathe the pure and invigorating air of the republic.

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The primitive government of Rome was composed, with some political skill, of an elective king, a council of nobles, and a general assembly of the people. War and religion were administered by the supreme magistrate; and he alone proposed the laws, which were debated in the senate, and finally ratified or rejected by a majority of votes in the thirty curia or parishes of the city. Romulus, Numa, and Servius Tullius, are celebrated 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

5 Our original text is a fragment de Origine Juris (Pandect. 1. i. tit. ii.) of Pomponius, a Roman lawyer, who lived under the Antonines (Heinecc. tom. iii. syl. iii. pp. 66-126). It has been abridged, and probably corrupted, by Tribonian, and since restored by Bynkershoek (Opp. tom. i. pp. 279-304).

The constitutional history of the kings of Rome may be studied in the first book of Livy, and more copiously in Dionysius Halicarnassensis (1. li. pp. 80-96, 119-130, 1. iv. pp. 198-220), who sometimes betrays the character of a rhetorician and a Greek.*

7 This threefold division of the law was applied to the three Roman kings by Justice 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.

he had learned from the compilations of various authors, it happened that, in following the sometimes rash opinions of these guides, Gibbon has fallen into many errors, which we shall endeavor in succession to correct.

The work of Bach on the History of the Roman Jurisprudence, with which Gibbon was not acquainted, is far superior to that of Heineccius; and since that time we have new obligations to the modern historic civilians, whose indefatigable researches have greatly enlarged the sphere of our knowledge in this important branch of history. We want a pen like that of Gibbon to give to the more accurate notions which we have acquired since his time, the brilliancy, the vigor, and the animation which Gibbon has bestowed on the opinions of Heineccius and his contemporaries.-W.

M. Warnkönig refers to the work of Beaufort, on the Uncertainty of the Five First Ages of the Roman History, with which Giboon was probably acquainted, to Niebuhr, and to the less known volume of Wachsmuth, "Aeltere Geschichte des Röm. Staats." To these I would add A. W. Schlegel's Review of Niebuhr, and my friend Dr. Arnold's recently published volume, of which the chapter on the Law of the XII. Tables appeals to me one of the most valuable, if not the most valuable, chapter.-M.

t Whoever is acquainted with the real notions of the Romans on the jus naturale, gentium et civile, cannot but disapprove of this explanation, which has no relation to them, and might be taken for a pleasantry. It is certainly unnecessary to increase the confusion which already prevails among modern writers on the true sense of these ideas. Hugo.-W.

children, and the authority of parents, which may seem to draw their origin from nature itself, are ascribed to the untu tored 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 a 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 magis trates. Yet the positive institutions of the kings had blended themselves witli 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

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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. pp. 284, 285) and Heineccius (Hist. J. C. R. 1. i. c. 16, 17, and Opp. tom. iii. sylloge iv. pp. 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) left only an oral tradition; and that the Jus Papirianum of Granius Flaccus (Pandect. 1. L. 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. 154).*

9A pompous, though feeble attempt to restore the original, is made in the Histoire de la Jurisprudence Romaine of Terasson, pp. 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 Gubio. A part of these (for the rest is Etruscan) represents the primitive state of the Palasgic 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 explained of a Crestona in Thrace (Notes de Larcher, tom. i. pp. 256-261). The savage dialect of the Eugubine tables has exercised, and may still elude, the divination of criticism; but the root is undoubtedly Latin, of the same age and character as the Saliare Carmen, which, in the time of Horace, none could understand. The Roman idiom, by an infusion of Doric and Æolic Greek, was gradually ripened into the style of the xii. tables, of the Duillian column, of Ennius, of Terence, and of Cicero (Gruter. Inscript. tom. i. p. exlii. Scipion Maffei, Istoria Diplomatica, pp. 241-258. Bibliothèque Italique, tom. iii. pp. 3041, 174-205, tom. xiv. pp. 1-52).†

* Niebuhr considers the Jus Papirianum, adduced by V'errius Flaccus, to be of undoubted authenticity. Rom. Geschichte, 1. 257.-M. Compare this with the work of M. Hugo.-W.

The Eugubine Tables have exercised the ingenuity of the Italian and German critics; it seems admitted (O. Muller, die Etrusker, ii. 313) that they are Tuscan. See the works of Lauzi, Passeri, Dempster, and O. Muller.-M.

I shall not repeat the well-known story of the Decemvirs," who sullied by their actions the honor of inscribing on brass, or wood, or ivory, the TWELVE TABLES of the Roman laws." They were dictated by the rigid and jealous spirit of an aris tocracy, 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 enlight ened neighbors.† 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. The names and divisions of the copper money, the sole coin of the infant state, were of Dorian origin: the harvests of Campania and Sicily relieved the wants of a people whose agriculture

11 Compare Livy (1. iii. c. 31-59) with Dionysius Halicarnassensis (1. x. p. 044-xi. p 691). How concise and animated is the Roman-how prolix and lifeless the Greek! Yet he has admirably judged the masters, and defined the rules, of his torical composition.

1 From the historians, Heineccius (Hist. J. R. 1. 1. No. 26) maintains that the twelve tables were of brass-areas; in the text of Pomponius we 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 (Tuscalan. Quæstion. v. 36; his statue by Pliny (Hist. Nat. xxxiv. 11). The letter, dream, and prophecy of Heraclitus, are alike spurious (Epistolæ Græc. Divers p. 33.).t

14 This intricate subject of the Sicilian and Roman money, is ably discussed by Dr. Bentley (Dissertation on the Epistles of Phalaris. pp. 427-479), whose powers in this controversy were called forth by honor and resentment.

Compare Niebuhr, 355, note 720.-M. It is a more important question whether the twelve tables in fact include laws imported f.om Greece The negative opinion maintained by our author, is now almost universally adopted, particularly by MM. Niebuhr, Hugo, and others. See my Institutiones Juris Romani privati Leodii, 1819, pp. 311, 312.-W. Dr. Arnold, p. 255, seems to incline to the opposite opinion. Compare some just and sensible observations in the Appendix to Mr. Travers Twiss's Epitome of Niebuhr, p. 347, Oxford, 1836.-M.

+ Compare Niebuhr, vol. ii. p. 349, &c.-M.

Compare Niebuhr, ii. 209.-M. See the Mém. de l'Académ. des Inscript. xxii. p. 48. It would be difficult to disprove, that a certain Hermodorus had some share in framing the Laws of the Twelve Tables. Pomponius even says that this Hermodorus was the author of the last two tables. Pliny calls him the Interpreter of the Decemvirs, which may lead us to suppose that he labored with them in drawing up that law. But it is astonishing that in his Dissertation (De Hermodoro vero XII. Tabularum Auctore, Annales Academie Groninganæ anni 1817, 1818), M. Gratama has ventured to advance two propositions entirely devoid of proof: "Decem priores tabulas ab ipsis Romanis non esse profectas, tota confirmat Decemviratûs Historia," et " Hermodorum legum decemviralium veri nomnis auctorem esse, qui eas composuerit suis ordinibus, disposuerit, suaque fecerit auctoritate, ut a decemviris reciperentur." This truly was an age in which the Roman Patricians would allow their laws to be dictated by a foreign Exile! Mr. Gratama does not attempt to prove the authenticity of the suppos ititious letter of Heraclitus. He contents himself with expressing his astonish ment that M. Bonamy (as well as Gibbon) will not receive it as genuine.-W.

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was often interrupted by war and faction; and since the trade was established, the deputies who sailed from the Tiber might return from the same harbors with a more precious cargo of political wisdom. The colonies of Great Greece had transported and improved the arts of their mother country. Cuma and Rhegium, Crotona and Tarentum, Agrigentum and Syracuse, were in the rank of the most flourishing cities. The disciples of Pythagoras applied philosophy to the use of government; the unwritten laws of Charondas accepted the aid of poetry and music, and Zaleucus framed the republic of the Locrians, which stood without alteration above two hundred years." 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 Alex. ander; 18 and the faintest evidence would have been explored

15 The Romans, or their allies, sailed as far (Polyb. I. ii. p. 177, edit. Casaubon, in folio). noticed by Livy and Dionysius.

as the fair promontory of Africa, Their voyages to Cumæ, &c., are

16 This circumstance would alone prove the antiquity of Charondas, the legis lator of Rhegium and Catana, who, by a strange error of Diodorus Siculus (tom. i. 1. xii. pp. 485-492) is celebrated long afterwards as the author of the policy of Thurium.

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 republi s. (See two Memoirs of the Baron de St Croix, sur la Législation de la Grande Grèce; Mém. de l'Académie, tom. xlii. pp. 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, pp. 335-577

18 1 seize the opportunity of tracing the progress of this national intercourse; 1. Herodotus and Thucydides (A. U. C. 300, 350) appear ignorant of the name and existence of Rome (Joseph. contra Appion. tom. ii. 1. i. c. 12, p. 444, edit. Haver. camp). 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. 22, edit. H. Stephan). 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 pp. 294, 295), and by Memnon of Heraclea (apud Photium, cod. cexxiv. 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 Eneid (Cassandra, 1226-1:8 ).

Γῆς καὶ θαλάσσης σκήπτρα και μοναρχίαν
Λαβόντες.

A bold prediction before the end of the first Punic war!*

Compare Niebuhr throughout. Niebuhr has written a dissertation (Kleine Schriften, 1. p. 438), arguing from this prediction, and on other conclusive grounds, that the Lycophron, the author of the Cassandra, is not the Alexandrian poet. He had been anticipated in this sagacious criticism, as he afterwards discovered, by a writer of no less distinction than Charles Jaines Fox.-Letters to Wakefield

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 proofs of a common descent from Egypt or Phoenicia. 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.

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Whatever might be the origin or the merit of the twelve tables, 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 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 Draco, 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

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. pp. 167-175). The right of killing a nocturnal thief was declared by Moses. Solon, and the De cemvirs (Exodus xxii. 3. Demosthenes contra Timocratem, tom. i. p. 736, edit. Reiske. Macrob. Saturnalia, I.i. c. 4. Collatio Legum Mosaicarum et Romanarum, tit. vii. No. 1. p. 218, edit. Cannegieter).*

20 Bpaɣews kaι ȧTepiTтws is the praise of Diodorus (tom i. 1. xii. p. 494), 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 Ora tore, i. 43, 44).

And likewise by the author of the extraordinary translation of this poem, that most promising scholar, Lord Royston. See the Remains of Lord Royston, by the Rev. Henry Pepys, London, 1838.-M.

Are not the same points of similarity discovered in the legislation of all nations in the fancy of their civilization ?-W.

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