The Civil Law.— The Roman Law of the Twelve Tables, more clearly than some other of the codes mentioned, was the fruit of a pop ular revolt against the legislative monopoly of a class. The institution of the tribunate had subjected the pronouncements of the patrician Senate to the veto of a popular representative; the Publican Law had given the plebeians the right to make laws in Their own assemblies; finally the Decemvirate was established for the express purpose of ordering and declaring a law which should be applicable to all citizens of Rome, and known to all through its pub lication. When its task was completed, the Decemvirate was dissolved. One should not expect these early collections to be codes in the modern sense. Solon's Constitution of Athens bad but little order and usually these compilations mingled religious and civil ordi nances and moral precepts without regard for their essential differences in character. The Roman code is a mere enunciation of customs existing at a time when Roman society had barely emerged from the intellectual condition in which religious duties and civic obligations are invariably confounded. Its provisions re specting contracts, and many other things, might have more properly found place in a book of rites than in .a book of laws; and it embalmed cruel and superstitious practices. The body of a bankrupt might be cut up and divided among his creditors. The inflexibility of a code would not at first be regarded, as an evil comparable with the evil of living under a law held in guardianship by the privileged few and altered by these at will to suit their pur poses. Their strict adherence to the letter, moreover, enabled the Romans to preserve their legal institutions intact amid great social changes and to avoid the dangers of a too rapid development — such as reduced some of the Greek codes to formlessness and made the law as administered by Athenian juries, for instance, very little better than the rule of the mob. When the Roman jurists had to adapt code to new circumstances they did so with great caution and, at the outset, by legal fictions. These fictiones, as they were called, while concealing, or affecting to conceal, any change in the letter of the law, permitted a change in its operation or direction. For in stance, the jus civilis (literally the law per taining to citizens) gave strangers no standing in court. But justice could not be denied to the great number of aliens who had flocked to the city; so a rule of pleading was made that a plaintiff might aver his citizenship and that this averment could not be traversed, even though it might be untrue. The form of mar riage known as usus required continuous co habitation for one year to establish the rela tion with all its legal consequences; a woman thus married (and usus became the prevalent form of marriage) could, by absenting her self from the marital domicile for one day in each twelvemonth, defeat the law which gave the husband absolute power over theperson and property of his wife. The legal fictions were many. In their responsa prudentuni, learned jurists applied the law in a sense other than literal. But a more effective solvent of the harshness of the code was eguitas. This was an outgrowth of the jus gentium. The Prmtor annually published an edict (it after ward became perpetual) containing a statement of the law which he proposed to apply in the cases of foreigners seeking justice in the courts of Rome. The praetorian edict was a collation of alien laws on various topics which seemed likely to he brought into judicial consideration. In the beginning the edict was a contemptuous concession to the gentiles; but the uniformity of the legal rules on given subjects, though drawn from many and quite unrelated sources, could not fail to become impressive. It seemed reasonable that rules, which served the ends of justice between Syrians, Egyptians, Gauls and Greeks, would produce equitable results also when applied to Romans. If strangers could transfer all kinds of property by simple deliv ery, or could make contracts by simple memo randum, by letter or by word of mouth, why should a Roman be obliged to go through an elaborate ceremonial, which had become mean ingless and superfluous, in order to achieve the same purpose? While the rules of equity, which were published by the Praetor from time to time and added to the perpetual edict, could not supersede the rules of law, they could, and did, make the latter inoperative. A Roman woman and her property might still be left (by the law) in lifelong wardship of her male rela tives; but a rule of equity would enable her to snap her fingers at her guardians by recog nizing her right to use and dispose of that which was hers as she wished. Wills originally could be made only in the presence, and with the consent, of the tonna° colata; they might be regarded, therefore, as special acts of legis lation. The object of a will was to enable a father to direct who should be his heir and thus to defeat the law of inheritance which made an emancipated son incapable of taking his heritage by regular legal succession. The Praetor, however, actively intervened to pre vent the abuse of testamentary power. An "undutious will* could be set aside and any disposition of the patrimony contrary to the equitable rights of a wife or children would be disregarded. There was comparatively little legislation affecting private Roman law until the time of the later emperors. But the fic tional and equitable exceptions ultimately be came the rules and the moral speculations of the Greek philosophers exerted a profound in fluence. Aristotle mentions a distinction be tween written law and "the law which is ac cording to nature and immutable.* The Stoics habitually opposed to the law imposed by human authority the common law, which is the right reason, and which pervades all things.* In the same strain, Cicero speaks of law, as "implanted by Nature, commanding those things which ought to be done and pro hibiting the reverse.* This "highest law,* he says, "was born in all ages before any statute was written or any state was formed.* The Roman lawyers had already perceived a ma terial unity in the laws of all nations in their contemplation of the jus gentium: they were well prepared, therefore, for the reception of the ideal of a universal law, to which all legal systems tend and to which they should con form—and which has its basis in an all-per vading sense of justice. This conception of a
"law of nature* is a little different from and more rationalistic than that of the Moral phi losophers. And it led to an ever-increasing conformity of the jus civilis to natural ideas of right and the elimination therefrom of un reason and non-essential formality. The devel opment of the jus civilis was complete in the time of Hadrian; the codification of Justin ian, four centuries later, was little more than a recension. It became practically a universal law when Caracalla's decree enabled every in habitant of the empire to say "civis Romanus sum,* and the distinction between citizens and gentiles ceased to exist. Its general provisions, regulative of the rights of property and of per sons in their private relations to one another, have since been bettered in only few respects and have deteriorated in some. The original barbarity of the patriet potesteu had been re fined. so that the power 'of the father over the Persons of his children had been reduced to a conditional veto of their marriage, while his power over the property of unemancipated sons 'was modified through the general practice of emancipating them when they had attained the age of discretion. Children, irrespective of sex, shared equally in the patrimony, though the estate might be held in trust by the gen eral heir appointed by will. Marriage, rest ing on the consent of the married, it was con sidered "immoral* to hold the parties in the bonds of matrimony when consensus no longer was present. Milton postulated his theory of divorce•on the same premise and the doctrine is really not more shocking coming from a heathen Roman lawyer than from an English Puritan pamphleteer. The jus civitis gave more freedom to women, married or tmmar ried, than most modern laws do; but it recog nized chattel slavery.
The Feudal System.— The' barbarian erup tion broke the continuity of the develop ment of the law on a Roman foundation. The customary laws of the Teutonic in vaders were modified here and there through contact' with the Roman system. Theo doric the Goth had received his education at the imperial court at Constantinople; but the Ostrogothic kingdom of Italy was too short lived to permit the growth of a Romanized system of Teutonic'law. The Forum Judicum is the only extant code in which a fusion of the two systems was made with a measurable degree of success. This code was framed (649 652 A.D.) during the reigns of Chintasvintus and Recesvintus, two Visigothic kings in Spain, and is a combination of the Visigothic laws, re duced to writing 'in the second half of the' 5th century by Euric at Arles, and of the Brevia rtim Alaricum, compiled from the Roman codes at the beginning of the 6th century. The Visi gothic kingdom was overthrown in •711, but its code was adopted by Ferdinand III of Ara gon about 1350. The Christian Church intro duced and administered the Roman law of in heritance and of marriage and the family— modified by Christian concepts and the Leviti cal canon—and influenced the embodiment of the principle of the widow's dower into the cus tomary law of all western Europe. In almost all other respects, however, the rupture with the past became complete when the feudal sys tem had become firmly established. The ex clusive right of the first-born to the succession and the rules for the entailment of estates were originally promulgated in the "house laws* of the great feudatory chiefs, who com pelled weak sovereigns to incorporate them in their land grants; but these regulations did not have long to wait for their embodiment into the customary law. 'On top of the institution of chattel slavery, or serfdom, feudalism im posed the institution of villeinage, with the right of the lord to heriots and unpaid forced labor. While the right of unmarried women to hold property, as recognized by the Roman law, was continued, the property of a married woman passed absolutely under the dominion and ownership of her husband. As a legal per son a woman ceased to exist when she became a wife. When European society worked its way out of these conditions, after centuries of struggle, it was with little help from the Ro man law. There was no central source of au thority. The empire of the Franks fell to pieces after the death of Charlemagne and the mediaeval empire of the Germans, sometimes called "Holy" and "Roman," was a mere thing of parchment and ink. It was not recognized in France after the 10th century. Germany from the beginning was a loosely-knit aggre gation of duchies, whose chiefs were as often at war with the Kaiser as in his allegiance.. The grand seigneurs of France were more pow erful than the king. Conditions were not pro pitious for the development of a common law and became less so as political and class divi sions grew smaller and more numerous. The organization of secret courts (Ger. Vehm gerichte) whose judgments, made in the dark, were executed in the dark by the daggers of oath-bound brotherhoods, was only one of many indications of the general lawlessness. What law developed was of limited application with respect to the territory, or the social classes, affected. Every province in France had a dif ferent legal system, every German principality had its "Landrecht° ; every incorporated city had its "liberties," every guild its institutions and ordinances, and every robber baron was a law unto himself. A lex maritinia was devel oped for mariners and over-sea traders, and a lex mercatorum for merchants. The two last named had some claim to universality, for they were observed, by the classes for which they were made, throughout Europe, irrespec tive of nationality and were administered and enforced by special courts. Their basic prin ciples were taken from the Roman law, as were those of the all-pervading canon law, and in these three systems the jus civilis mani fested the most of its posthumous power.