was once made a charge against Demosthenes that he showed a speech which he had prepared for his client to the opposite side. We possess three sets of tetralogies, or quartettes of speeches, which Antiphon wrote for the prosecution and defence in cases of trials for homicide; and an old scholiast mentions this approvingly, as a great feat of dexterity and skill. He says "It is true that Antiphon always exhibits his native and peculiar power, but especially in those speeches, in which he counterpleads against himself. For having prepared two speeches on behalf of the accuser, he composed two for the accused also, and sustained his high reputation in both alike." 1 One of these trials was of a curious nature. Two youths were practising archery in a gymnasium, when one of them happened to run across the line of flight of an arrow shot by the other, and was killed. By the law of Athens a person who caused a death by what we call chancemedley, was liable to a prosecution, and the punishment awarded was exclusion from certain religious rites, under the notion that such an expiation was necessary to wipe off the pollution, which would otherwise rest upon the community. In this case the father of the young man who was slain was the accuser, and the defence set up was that, although it was perfectly just and proper that involuntary homicide should be punished, yet here the deceased could in no sense be said to have been killed by his companion, but was the author of his own misfortune; for if he had not gone himself in the direction of the arrow, he would not have been

1 In justice, however, to Antiphon, it must be mentioned that these tetralogies are supposed to have been mere exercises of skill, and not written for any real occasion.

2 The Israelites were ordered to provide cities of refuge for the innocent slayer. "Whoso killeth his neighbour ignorantly, whom he hated not in time past; as when a man goeth into the wood with his neighbour to hew wood, and his hand fetcheth a stroke with the axe to cut down the tree, and the head slippeth from the helve, and lighteth upon his neighbour that he die; he shall flee unto one of those cities, and live."-Deut. xix. 4, 5.

CHAP. II.

SPECIAL PLEADING.

53

struck. This seems obvious enough; but four speeches are devoted to the subject, and the arguments for and against each view of the case are not unamusing specimens of Athenian special pleading.

1 This is something like a plea which we find in Bacon's Apophthegms. “A thief, being arraigned at the bar for stealing a mare, in his pleading urged many things in his own behalf; and at last nothing availing, he told the bench, the mare rather stole him than he stole the mare,—which, in brief, he thus related. That, passing over several grounds about his lawful occasions, he was pursued close by a fierce mastiff dog, and so was forced to save himself by leaping over a hedge, which, being of an agile body, he effected; and in leaping, a mare standing on the other side of the hedge, he leaped upon her back, who, running furiously away with him, he could not by any means stop her until he came to the next town, in which town the owner of the mare lived, and there was he taken and here arraigned." The reader will recollect the famous case of Bullum v. Boatum, where the question was, whether the bull went off with the boat, or the boat with the bull.

A curious question was submitted to the Law Officers of the Crown while Napoleon was a prisoner at St. Helena. He was fond of ball-practice, and fired very carelessly, one day killing a bullock. Supposing he had killed a person under circumstances which would amount to manslaughter according to English Law, what was to be done to him? An opinion was given, but I have been unable to find it. See Forsyth's Napoleon at St. Helena and Sir Hudson Lowe, vol. iii. P. 311.

SKETCH OF THE ROMAN LAW AND THE ROMAN
COURTS DURING THE REPUBLIC.

The Forum, where the immortal accents glow,

And still the eloquent air breathes,-burns, with Cicero.-BYRON.

BEFORE we proceed to give an account of the profession of an Advocate in ancient Rome, it will be useful to inquire briefly, what was the nature of the Roman law with which he had to make himself acquainted, and what were the tribunals before which he had to plead. It will be sufficient for our present purpose to give merely a slight and imperfect sketch; for the difficult subject of the principles and rules of the early Roman law would require an elaborate treatise of itself, if it were discussed with the fulness which it admits of and deserves. Here, it is only necessary to trace the outlines of the different heads of law as administered at Rome, without staying to investigate the processes and forms peculiar to each separate jurisdiction, or discuss the rights of parties under them. We shall thus see what were the elements, of

CHAP. III.

ROMAN LAW.

55

which the complex idea expressed by the term Roman law consisted, and what it would be understood to embrace in the days of Cicero; just as we might analyse the English law, by separating it into its different branches of common law, equity, statute law, and the civil and canon law administered in our ecclesiastical courts. For this purpose it will be convenient to follow the order of division, which we find in the Institutes and Digest of Justinian;1 and I shall endeavour to render the subject more familiar to our ideas, by illustrations and analogies drawn from our own law.

The clear and interesting narrative given in the Digest is taken from a work which no longer exists, called the Enchiridion of Pomponius. But we cannot, with implicit confidence, follow the Roman jurists as authorities on the subject of the early Roman law. To understand this aright, a correct knowledge of the ancient constitution of Rome was necessary; and we know that in this respect they were singularly deficient. The writers in the later times of the republic had very inaccurate conceptions of the history of their country

1 Inst. I. tit. i., Dig. I. ii. 2.

The only ancient work in which we have anything like a systematic account of the old Roman law, as it existed in the earlier times of the republic, is the Institutes of Gaius or Caius-for the name is spelt either way, according as the Greek or Latin orthography is preferred. Gaius lived in the reigns of Hadrian and Antoninus Pius, between 117 and 161 A.D.; but we know nothing of his history, except that he was a profound jurist and wrote a great work, called Institutiones, upon the ancient Roman law. Fragments of this were preserved by being incorporated into the Digest or Pandects of Justinian; but the work itself was supposed until recently to be wholly lost. Maffei had indeed, at the beginning of the last century, discovered in the chapter library at Verona two pages of manuscript, containing a part of these Institutes; but it was not until 1816, that Niebuhr, during a two-days' residence at Verona, while on his way as Prussian ambassador to Rome, discovered nearly the whole work in a palimpsest, on which were written the letters of St. Jerome. Niebuhr was not at first aware of the value of the treasure he had found, not being able at the time to decipher more than satisfied him that it was the work of some old Roman jurist; but, on communicating with Savigny, the latter hazarded a conjecture that it was the lost Institutes of Gaius; and this happily proved to be correct.

for the first few centuries; and Livy and Dionysius are constantly mistaken when they attempt to explain usages and institutions, of the origin of which no trustworthy record had been preserved. Popular traditions, however improbable as well as untrue, were accepted as a plausible account of bygone events, though often based upon no better foundation than that fertile source of error, a false etymology. And the statements put forward by these historians were generally adopted, without any critical examination of their probability or truth. Indeed, historical criticism did not then exist. It was reserved for our own æra to discover the extent to which they were misled, and Niebuhr in his immortal history, first lifted the veil that shrouds in such deep obscurity the first ages of the republic, and, out of the minute and fragmentary materials which time has spared, shadowed forth the lineaments of truth.1

The earliest Roman laws of which any mention is made by Latin writers were those contained in the Papirian code. These were such as were from time to time enacted in the times of the kings, which Sextus Papirius collected in a volume, and they thence received their name. But of these little or nothing is now known. The next in order are those of the Twelve Tables. They were compiled by the Decemvirs at the beginning of the fourth century of Rome, and consisted of a revision of the then existing laws, and some new ones which, according to a very questionable tradition, had been imported from Greece by three Commissioners, who had been sent there for the purpose of collecting notices of such laws

1 Dion Cassius, who flourished at the end of the second and in the early part of the third century, had a far more accurate view of the early constitution of Rome than any of the Augustan writers. And yet he was not a Roman by birth, but a native of Nicea in Bithynia. In speaking of Niebuhr as the author of the true theory of that constitution, it ought, in justice to the memory of Giambattista Vico, to be mentioned that he, in his Scienza di Nuovo, anticipated some of the discoveries of the German historian; especially the all-important difference between the populus and plebs. The same may be said of Perizonius, and, in a less degree, of Beaufort.