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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. Cumae 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 IRome 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 becn received from the Barbarians of IIesperia, the IRoman name would have been familiar to the Greeks before the reign of Alexander; * 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 lo. navigation to copy the purest model of a democracy. n 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 I’hoenicia.” But in all the great lines of public and private jurisprudence, the legislators of Rome and Athens appear to e strangers or adverse to each other.
15 The Romans, or their allies, sailed as far as the fair promontory of Africa, (Polyb. i. 1 ii. p. 177, edit. Casaubou, in folio). Their voyages to Cumae, &c., are noticed by Livy and Dionysius. * This circumstance would alone prove the antiquity of Charondas, the legislator of Rhegium and Catana, who, by a strange error of Diodorus Siculus (tom. his xii. pp. 485-492) is celebrated long afterwards as the author of the policy of Thurium. ii 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 Clarondas, which imposed on I) iodoris and Stobaeus, are the spurious composition of a Pythagorean sophist, whose fraud has been detected by the critical sagacity of Bentley. pp. 335-377 |* I 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 an existence of Rome (Joseph. contra Appion. tom. ii. l. i. e. 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. 2' 2, 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. ccxxiv. p. 725), though tacitly denied by Livy. , 4. Theophrastus (A. U. C., 440) primus externorum aliqua de Ikomanis diligentius scripsit (Plin. iii. 9); 5. Lycophron (A.U. C. 480-500) scattered the first seed of a Trojan colouy and the fable of the AEneid (Cassandra, 1226–1.8 ).
Tos kat 3a*\dooms axiomtpa kat Movapxtav
A bold prediction before the end of the first Punic war is
* Compare Niebuhr throughout. Niebuhr has written a dissertation (Kleine Schriften, i. 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 Janes Fox.-Letters to Wakefield, 10 The tenth table, de modo sepulturae, was borrowed from Solon (Cicero de Legibus, ii. 23–26) the furtum per lancem et licium conceptum, is derived by If eineccius 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 Decemvirs (Exodus xxii. 3. IXernosthenes contra Timocratem. tom. i. p. 736, edit. Ikeiske. Macrob. Saturnalia, ). i. c. 4. Collatio Legum Mosaicarum et IRomanarum, tit. vii. No. i. p. 218, edit. Cannegieter).”
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 hbraries 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 importectly restored by the labors of modern critics.” But although these venerable monuments were considered as the rule of right and the fountain of justice,” 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 of the city.” Three thousand brass plates, the acts of the senate and people, were deposited in the Capitol: * and some of the acts, as the Julian law against extortion, surpassed the number of a hundred chapters.” 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. The Decemvirs had been named, and their tables were 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,” ninety-eight votes were assigned, and only ninetyfive 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,” and gave their voices aloud, the conduct of each citizen was exposed to the eyes and ears of his friends and countrymen. The insolvent debtor consulted the wishes of his creditor; the client would have blushed to oppose the views of his patron; the general was followed by his veterans, and the aspect of a grave magistrate was a living lesson to the multitude. A new method of secret ballot abolished the influence of fear and shame, of honor and interest, and the abuse of freedom accelerated the progress of anarchy and despotism.” The Romans had aspired to be equal; they were levelled by the equality of servitude; and the dictates of Augustus were patiently ratified by the formal consent of the tribes or centuries. Once, and once only, he experienced a sincere and strenuous opposition. His subjects had resigned all political liberty; they defended the freedom of domestic life. A law which enforced the obligation, and strengthened the bonds of marriage, was clamorously rejected; Propertius, in the arms of Delia, applauded the victory of licentious love; and the project of reform was suspended till a new and more tractable generation had arison in the world.” Such an example was not necessary to instruct a prudent usurper of the mischief of popular assemblies; and their abolition, which Augustus had silently prepared, was accomplished without resistance, and almost without notice, on the accession of his succesmade formidable, and poverty secure, were supplanted by six hundred senators, who held their honors, their fortunes, and their lives, by the clemency of the emperor. The loss of executive power was alleviated by the gift of legislative authority; and Ulpian might assert, after the practice of two hundred years, that the decrees of the senate obtained the force and validity of laws. In the times of freedom, the resolves of the people had often been dictated by the passion or error of the moment; the Cornelian, Pompeian, and Julian laws were adapted by a single hand to the prevailing disorders; but the senate, under the reign of the Caesars, was composed of magistrates and lawyers, and in questions of private jurisprudence, the integrity of their judgment was seldom perverted by fear or interest.” The silence or ambiguity of the laws was supplied by the occasional Edicts f of those magistrates who were invested with the honors of the state.” This ancient prerogative of
* Bpaxéos Kal &méotrows is the praise of Diodorus (tom i. 1. xii. p. 494), which may be fairly translated by the eleganti atque absolutá brevitate verbo.um of Aulus Gellius (Noct. Attic. xxi. 1.)
* Listen to Cicero (de Legibus, ii. 23) and his representative Crassus (de Oratore, i. 43,44).
And likewise by the author of the extraordinarv translation of this poem, that most Ho: scholar, Lord Royston. See the Remains of Lord Royston, by tus Ike v. Henry Pepys, London, 1838.-M. * Are not the same points of similarity discovered in the legislation of all nations in the lilfancy of their civilization ?--W.
* See Heineccius (Hist. J. R. No. 29–33). I have followed the restoration of the xii. tables by Gravina (Origines J. C. pp. 280-307) and Terrasson (Hist, de la Jurisprudence Romaine, pp. 94–205).”
T Finis acqui juris (Tacit. Annal. iii. 27).f Fons omnis publici ot privati juris
(T. Liv. iii. 34).
** De principiis juris, et quibus modis ad hanc multitudinem infinitam ac varietatem legum perventum sit altius disseram (Tacit. Annal. iii.25). This deep dis luisition 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.
* Suetonius in Vespasiano, c. 8.
36 Cicero ad Familiares, viii. 8.
* Dionysius, with Arbuthnot, and most of the moderns (except Eisenschmidt de Ponderibus, &c., pp. 137–140), represent the 100,000 asses by 10,000 Attic drachmae, or somewhat more than 300 pounds sterling. But their calculation can apply only to the later times, when the as was diminished to 1-24th 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 haye heen exchanged for seventy pounds of copper or brass. A more simple and rational method is to value the copper itself according to the present rat , and, after comparing the mint and the market price, the Roman and avoirdupois weight, the primitive is 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 anox 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. Naour. xviii. 4): nor do I see any reason to reject these cousequences, which moderate our ideas of the poverty of the first Romans.#
* The wish expressed by Warnkönig, that the text and the conjectural emen§ations on the fragments of the xii. tables, should be submitted to rigid criticism, has been fulfilled by Dirksen, Uebersicht der bisherigen Versuche zur Kritik und Herstellung des Textes der Zwölf-Tafel-Fragmente, Leipzig, 1824.—M. ... t. From the context of the phrase in Tacitus, onam secute leges et si aliquando in maleficos ox, delioto ; sarius tamen dissensione ordinum . . . late sunto it is clear that Gibbon has rendered this sentence incorrectly. Hugo, Hist. p. 62.--M.
# Compare Niebuhr, English translation, vol.i. p. 448, &c.—M.
sor.” Sixth thousand plebeian legislators, whom numbers * Consult the common writers on the Roman Comitia, especially Sigonius and Beaufort, Spanheim (de Praestantiá et Usú Numismatum, tom. ii dissert x. pp. 192,193) shows, on a curious medal, the Cista, Pontes, Septa, Diribitor, &c. * Cicero (de Legibus, iii. 16, 17, 18) debates this constitutional question, and assigns to his brother Quintus the most unpopular side. *' Prae tumultu recusantium perferre non potuit (Sueton. in August. c. 34). See Propertius, l ii. eleg, 6 Heineccius, in a separate history, has exhausted the Fo subject of the Julian and Papian-Poppaean laws (Opp. tom. vii. P. i. pp. * Tacit. Annal. i. 15, Lipsius, Excursus E. in Tacitum.*
.* This error of Gibbon has been o, detected. The senate, under Tiberius, did indeed elect the magistrates, who before that emperor were elected in the *
3. Non ambigitur sematum jus facere posse, is the decision of Ulpian (l. xvi. ad Edict. in Paindect. 1. i. tit iii. leg 9). Pomponius taxes the comitia of the people as a turba hominum (Pandect. l. i. tit. ii. leg. 9).”
34 The jus honorarium of the praetors and other magistrates is strictly defined in the Latin text of the Institutes (l. i. tit. ii. No. 7), and more loosely explained in the Greek paraphrase of Theoplilus (pp. 33-38, edit. Reitz). Wllo drops the important word homorarium. #
comitia. But we find laws enacted by the people during his reign, and that on claudius For example: the Julia-Norbana, Vellea, and Claudia de tutelä foeminarum. Compare the Hist, du Droit Romain, by M. Hugo, vol. ii. p. 55, 57. The comitia ceased imperceptibly as the republic gradually expired. –W. • The author adopts the opinion, that under the emperors alone, the senate had a share in the legislative power. They had nevertheless participated in it under the Republic, since senatás-consulta relating to civil rights lave been preserved, which are much earlier, than the reigns of Augustus or Tiberius. It is true that, under the emperors, the senate exercised this right more frequently, and that the assemblies of the people had become much more rare, though in law they were still permitted, in the time of Ulpian. (See the fragments of Ulpian.) Isaoh has clearly demonstrated that the senate had the same power in the time of the Republic. It is natural that the sematüs-consulta should have been more frequent under the emperors, because they employed those means of flattering the prido of the senators, by granting them the right of deliberating on all affairs which did not intrench on the Imperial power. Compare the discussions of M. Hugo, vol. i. p 284, et seq.--W. # There is a curious passage from Aurelias, a writer on Law, on the Praetorian Praefect, quoted in Lydis de Magistratibus, p. 32, edit. Hase. . The Praetorian priefect was to the emperor what the master of the horse was to the dictator under the Republic. He was the delegate, therefore, of the full Imperial authority ; and no appeal could be made or exception taken against his edicts. I had not ob: served this passage, when the third volume, where it would have been moré appropriately placed, passed through the press.--M, : The author here follows the opinion of Heineccius, who, according to the idea of his master Thomasius, was unwilling to suppose that magistrates exercising a judicial could share in the legislative power. For this reason he represents the edicts of the praetors as absurd. . (See his work, IIistoria Juris Romani, 69, 74.) But, Heineccius had altogether a false notion of this important institution of the Romans, to which we owe in a great degree the perfection of their jurisprudence. Heineccius, therefore, in his own days load many opponents of his system, among others the celebrated Ritter, professor at Wittemberg, who contested it in notes appended to the work of Heineccius, and retained in all subsequent editions of that book. After IRitter, the learned Bach undertook to