1

SPECIAL PLEADING.

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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 defense 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 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 ball.

CHAPTER III.

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

B

EFORE 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 fullness 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 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 analyze 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 (Inst. I. tit. i., Dig. I.`

ii. 2.); and I shall endeavor 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 can not, 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 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

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 7 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 "cient 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 tc 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 russian am bassador to Rome, discovered nearly the whole work in a palimpsest, or 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 Remar jurist; but, on communicating with Savigny, the latter hazarded a con jecture that it was the lost Institutes of Gaius; and this happily proved be correct.

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.'

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 and customs as might be useful to the Romans. In the adaptation of these they are said to have been assisted by an Ionian Greek, named Hermodorus of Ephesus. The new code, when completed, was engraved on twelve

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 Nicæa 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.

THE TWELVE TABLES.

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tablets of ivory or brass,' and set up publicly in front of the Rostra in the comitium, that the enactments might be seen and read by all the citizens. These were, in the strictest and most technical sense, leges, and may be considered as the early statute law of Rome. Cicero speaks of them in the most enthusiastic terms, and in the dialogue De Oratore makes Crassus, who there represents his own opinions, exclaim-"Let people clamor as they will, I shall say what I think. A single copy of the Twelve Tables seems to me to be more valuable and of more authority than the libraries of all the philosophers, for the purpose of investigating the sources and principles of law" (De Orat. 44).

At the same time certain forms of actions were framed, according to which legal rights and liabilities were to be determined, and these were called legis actiones. The knowledge of them, as well as the right of interpreting the Twelve Tables, was for nearly a century confined to the college of priests (collegium pontificum), as a privilege or prerogative of their order; and it was deemed a kind of mystery or craft not to be communicated to the people. But, according to the tradition received at Rome, it happened that Appius Claudius composed, for the use of himself and his colleagues, a treatise upon these various forms of legal procedure; and his secretary Cnæus Flavius getting possession of the book, made it known to the public, so that thenceforth every man might make himself acquainted with the forms of action

In the Digest we read, "quas in tabulas eboreas perscriptas pro rostris composuerunt;" but Dionysius, Hal. x. 57, says, бTηλais xaλnais εyxαρά2αντes aurous. There may, however, be no real discrep ancy between these statements; for probably the Digest refers only to the public exposition of the ten tablets which were hung up in the comitium to invite public criticism, the laws not being yet considered complete. Afterwards two more were added, and very possibly when the code was thus finally perfected, brazen tablets were used as being more durable. Livy, iii. 34, does not determine the question, as he simply uses the word tabula.