the variety and excellence of its general principles. It is now taught and obeyed, not only in France, Spain, Germany, Holland, and Scotland, but in the islands of the Indian Ocean, and on the banks of the Mississippi and the St. Lawrence. So true, it seems, are the words of D'Aguesseau, that "the grand destinies of Rome are not yet accomplished; she reigns throughout the world by her reason, after having ceased to reign by her authority."

My design in the present lecture is to make a few general observations on the history and character of the civil law, in order to excite the curiosity and direct the attention of the student to the proper sources of information on the subject. The acquaintance which I have with that law is necessarily very imperfect; and I am satisfied that no part of it can be examined, and no one period of its history can be touched, by a person not educated under that system, without finding himself at once admonished of the difficulty and delicacy of the task, by reason of the overwhelming mass of learning and criticism which presses upon every branch of the inquiry.

That part of the Roman jurisprudence which has been denom inated the ancient, embraced the period from the foundation of the city by Romulus to the establishment of the twelve tables.

law.

The fragment of the Enchiridion inserted in the Pandects, (a) is the only ancient history of the first ages of the Roman Early Roman law now extant. It was composed by Pomponius, in the second century of the Christian era, and rescued from oblivion by Justinian; and Bynkershoek has republished *it, and endeavors to restore the integrity of the origi- *517 nal text by emendations and a critical commentary. (a) From this fragment we learn that Sextus, or Caius Papirius, who was a pontifex maximus about the time of the expulsion of Tarquin, made a collection of the leges regia, or laws and usages of the Romans under their kings, and which was known by the name of the Jus Civile Papirianum. Very few, if any fragments of this original collection by Papirius now remain, though efforts have been made to restore, if possible, some portion of these early Roman laws. (b) Such a work was evidence of great progress in

(a) Dig. lib. 1, tit 2. De origine juris.

(a) Prætermissa ad leg. 2 D. De origine juris. Opera, tom. i. 301.

(b) Heinecc. Antiq. Rom. Jur. Proæm. sec. 1 and 2. Hist. Jur. Civ. lib. i. sec. 15, 16.

jurisprudence under the kings, and it must have contained an account which would have been at the present day most deeply interesting and curious, of the primitive institutions of a city destined to become the mistress of the world. (e)

*

The genius of the Roman government and people had displayed itself by the time of the expulsion of their kings, and the foundations of their best institutions and discipline had been laid. The Roman people were originally, or very early in their history, divided into three tribes and thirty curiæ, and the patrician order and the Roman senate were instituted under Romulus, and that last body became in process of time the most powerful and majestic tribunal in all antiquity. (d) The general assemblies of *518 the people or comitia were a part of the primitive government, and a very efficient portion of the legislative power, and they met in their curia, parishes or wards, and the vote of every citizen belonging to the curia was equal in these comitia curiata. The senate was a select body of three hundred of the elder citizens, from the heads of the clans or gentes, and regard was had to rank, birth, property, honor, and age. The king was elected for life by the curiæ, upon the nomination of the senate, and the laws of the comitia conferred upon him the powers of a civil and military chief. (a) The fecial and other colleges

(c) Gibbon, in his History, vol. viii. p. 5, note, denies altogether the fact of any such original compilation by Papirius. Niebuhr, on the other hand, though he treats much of the early Roman history as a legend, says, that the high antiquity of the collection of the laws of the kings, compiled by Papirius, seems unquestionable. History of Rome, vol. i. p. 211, (Eng. edit.) I am incompetent to decide such a question. It is cited as an original and authentic work by Pomponius, who had infinitely better means of knowledge than any modern writer; and it is assumed to be so by such master critics as Bynkershoek and Heineccius; and yet the singular learning and acuteness of Gibbon give almost overbearing weight to his critical opinions.

(d) Cic. de Republica, b. 2. In hoc orbis terræ sanctissimo, gravissimoque concilio. Cic. in Cat.

(a) I have followed Dionysius of Halicarnassus, Livy, Cicero, and the other authors of the classical ages, in respect to the early political and legal history of Rome; and I have not been inclined to adopt the historical scepticisms of some modern antiquaries, (of whom Niebuhr may be placed at the head,) so far as to reject as fable what the classics have taught us concerning the civil and political institutions of the earlier Romans. The account in the text of the mixed monarchy of Rome, under the kings, is confirmed by Niebuhr himself. Hist. of Rome, vol. i. pp. 290 – 295, English edit. Camb. 1828. He holds, however, contrary to the received opinion, that the curia were assemblies of the patricians, or gentes, or heads of families, and not of the whole people; and that the Plebs were landholders of the neighboring towns and country, and field-laborers, who were free, and above the degree or condition of the

*

established by Numa bound the Romans to religious discipline. (b) Servius Tullius divided the people into six classes, and one hundred and ninety-three centuries, and this was a most important change in the Roman polity. The first class contained the patricians, knights, and rich citizens, and ninety- * 519 eight centuries; the Plebs were also now admitted to a vote in the legislature, and when the people assembled by centuries in their comitia centuriata, (as they generally did thereafter when called by the consuls or senate,) they voted by centuries and the first class, containing a majority of all the centuries, if unanimous, dictated the laws. This arrangement threw the powers of government into the hands of the patrician order, and of men of property. (a)

After the establishment of the republic, all the higher magistrates were elected by the burghers or patricians in their curia, or by the whole people in the comitia centuriata, which were convoked

clients attached to the patricians, but that they had no vote. Niebuhr's work is so intermixed with true and fabulous story, and he goes so deeply into the "tangled thickets of the forest," that it becomes rather difficult to know what is and what is not to be deemed genuine history, amid his incessant scepticisms and complicated narration. I am quite reconciled to the observation of Dr. Arnold, in his profound and learned " History of Rome," vol. i. 100, that, "although the legends of the early Roman story are neither historical nor yet coeval with the subjects which they celebrate, still their fame is so great, and their beauty and interest so surpassing, that it would be unpardonable to sacrifice them altogether to the spirit of inquiry and of fact, and to exclude them from the place which they have so long held in Roman history."

(b) Numa religionibus et divino jure populum devinxit. Tac. Ann. 3, 26. According to Cicero, the auspices, religious ceremonies, courts of justice, appeals to the people, the senate, and the whole military discipline, were instituted by royal authority, as early as the foundation of the city. He imputes the institution of the auspices and the senate particularly to Romulus. Tusc. Quæst. lib. iv. 1. De Repub. lib. ii. sec. 9, 10, 14. He says, further, that Numa was the author of laws which were then extant! Ibid. lib. v. sec. 2. He regarded the office of augur as one of the most important in the commonwealth; for the augurs, as he observed, had power to dismiss the comitia, and to command the consuls to lay down their office, and to grant or refuse permission to form treaties, and to abrogate laws not legitimately executed. No edict of the magistrates, relating to domestic or foreign affairs, could be ratified without their authority. Ibid. lib. 2. Fuss on Roman Antiquities, edit. Oxf. 1840, pp.

164, 165.

(a) Eosque ita disparavit, says Cicero, (that is, he so distributed the citizens in classes,) ut suffragia non in multitudinis, sed in locupletium potestate essent ; curavitque, quod semper in republica tenendum est, ne plurimum valeant plurimi. De Repub. lib. ii. sec. 22. Cicero seems to have been aware of the danger to property from universal and equal suffrage, - Ita nec prohibebatur quisquam jure suffragii: et is valebat in suffragio plurimum, cujus plurimum intererat esse in optimo Statu civitatem. Ibid.

by the consuls, and they presided in them, counted the votes, and declared the result; and their resolutions were leges of the highest authority, and binding on the whole community. After the institution of tribunes, the assemblies of the people were frequently convoked by tribes, and there all the people met on an equality, and voted per capita. In the comitia tributa, the people, after violent struggles, elected the tribunes and subordinate magistrates, and enacted plebiscita, binding on the plebeians alone, until the Hortensian law made the decrees of the people in their comitia tributa binding equally on patricians and plebeians. (b)

As the whole administration of justice, civil and criminal, had been transferred from the kings to the consuls, it soon became

necessary to control the exercise of this formidable power. *520 This was done by the Valerian law, proposed by the

consul Valerius Publicola, granting to persons accused of capital crimes a right of appeal from the judgment of the consuls to the people. It then became an established principle in the Roman constitution, that no capital punishment could be inflicted upon a Roman citizen without the vote of the people, though the consuls retained the power of inflicting very severe imprisonment. (a) The Valerian law became an imperfect palladium of civil liberty, and was in some respects analogous to the habeas cor

(b) Dig. 1, 2, 2, 8; Gravina, de Ortu et Prog. Jur. Civ. sec. 28. The plebiscita, prior to the Hortensian law, required the sanction of the senate and of the assembly of the curie to be binding on all orders in the state. As the comitia curiata were assemblies of the patricians and plebeians, and in which all the great offices and powers of sovereignty were conferred, the comitia tributa were assemblies of the plebeians only, and were held independently of patrician magistrates and influence. They could be held without a previous senatus consultum, and were not subject to the check of the auspices, which were under the management of the patricians. The comitia centuriata embraced all the orders of the state, and all persons of an age for military service, and the patricians and their clients, and plebeians, all found a place in them. In the comitia tributa the votes were taken by tribes, and in the comitia curiata by curia. The patricians exercised controlling influence in the comitia centuriata by means of the votes of their clients. The increase of the numbers and wealth of the clients of the burghers or patricians gave the comitia centuriata in which they voted, in the progress of time, a popular character and influence; for though the clients lost their order and tribe by becoming dependent clients, they became wealthy, for they could follow retail trade and manufactures; and the comitia of centuries, in which the commons formed every century except six, grew to be assimilated, in a great measure, to those of the tribes. Arnold's Hist. of Rome, vol. i. 140, 141.

(a) Dig. 1, 2, 2, 16. The Roman dominion was absolute after a mile beyond the walls of the city, and the magistrates wielded the sword with full sovereignty. Arnold's Hist. vol. iii. 10.

pus act in the English law; but the appointment of a dictator was a suspension of the law. (b)

As the royal laws collected by Papirius had ceased to operate, except indirectly by the force of usage; and as the Romans, for twenty years after the expulsion of Tarquin, had been governed without any known public rules, (c) they began to suffer the evils of uncertain and unsteady laws, and of the absolute and capricious power of the consuls beyond the walls of the city. The call for a written law was a long time resisted on the part of the magistrates and senate; but it was at last complied with, and a commission of three persons, by the joint consent of the senate and tribunes, was instituted to form a system of law. This commission gave birth to the twelve tables, which form a distinguished era in the history of the Roman law, and constitute the commencement of what has been called the middle period of the Roman jurisprudence. (d)

(b) This great law of appeal was re-enacted in the fifth consulship of M. Valerius Corvus.

(c) Incerto magis jure et consuetudine quam per latam legem. Dig. 1, 2, 3.

(d) The Enchiridion of Pomponius says, that the deputies were commissioned to seek laws from the Grecian cities; (Dig. 1, 2, 2, 4;) and the original historians, (Livy, b. 3, c. 31, 32,) and Dionysius of Halicarnassus, (Antiq. Rom. b. 10,) say, that the deputation was sent to Athens to learn the laws and institutions of Greece. Gravina, (De Ortu et Prog. Jur. Civ. sec. 32; and De Jure Nat. Gent. et xii. tabularum, sec. 23.) Heineccius, (Hist. Jur. Civ. sec. 24; and Antiq. Roman Jur. Proæm. sec. 3,) Voet, (Com. ad Pand. 1, 2, 1.) Dr. Taylor, (Hist. of the Roman Law, p. 8.) Pothier, (Præfatio seu Prolegomena in Pandectas Justinianeas, part 1, c. 1; De Legibus Antiquis,) and the generality of modern writers on Roman history and law, assume it to be a conceded fact, on the authority of Livy, Dionysius, Cicero, Pliny, and others, that the embassy went to Athens. Tacitus (Ann. 3, 27) observes generally, accitis quæ usquam egregia, and the deputies must have visited at least the Grecian cities in lower Italy. M. Bonaby, a learned French writer, has, however, written three dissertations upon the origin of the laws of the twelve tables, and he considers the story of a Roman deputation to Athens as fabulous. He endeavors to maintain, by an able discussion concerning the early history of the Roman constitution and laws, and by a critical and even profound examination of the laws of the twelve tables, that they were not borrowed from the jurisprudence of Athens, but that they were essentially a restoration of the ancient Roman laws under Romulus, Numa, and Servius Tullius, and which had gone into disuse under the consuls. He admits, however, that the plan of the mixed monarchy, and many of the Roman usages under the kings, had their origin in the usages of Athens and Sparta. (Mem. de l'Acad. des Inscriptions et Belles-Lettres, tom. xviii. edit. Amst. 1743.) It is worthy of observation, that this sceptical as well as learned writer does not hesitate to assume, on the authority of Dionysius of Halicarnassus, the authenticity of the history of the Roman kings. Gibbon (Hist. vol. viii. p. 8) is also decidedly of opinion that the deputation never visited Athens, and he gives plausible reasons for his belief; and though Cicero says, (De Leg. b. 2, c. 23 and 25,) that the regulations in the twelve tables