CIVIL LAW, The. 1. Introduction.— The term Civil Law (Jus Civile) is commonly and popularly used in several distinct senses. Thus we distinguish it on the one hand from the !us Gentium and on the other hand from the !us Naturale. Again our municipal law is called the civil law, and further we distinguish between civil and criminal law on the one hand and civil and canon law on the other. But it is here used as referring to the whole body of Roman law (the Corpus Juris Civilis), having its proper origin contemporaneously with the genesis of the Roman state and com ing down in ordinary generation, from century to century, through the regal period, the repub lic and the empire to the codification of Jus tinian and Napoleon.
When we speak thus of the Civil Law we mean the whole system of usages and rules of private law adopted by the Roman people; their jus privatum as opposed to their jus publicum (including criminal and sacred law). The Corpus Juris Civilis as left by Justinian was the result of a gradual modification and enlarge ment of the code of the XII Tables under three great influences — the Jurisconsults, the Praetors and Legislation. The institutional definition of the jus civile as the peculiar law of Rome, in contrast with the jus naturale and the jus pentium is a mere philosophical flourish; by late writers jus civile was confined to the reseonsa prudentium alone; what the Roman jurists had chiefly before their mind when they used the expression was the old law of the XII Tables, as contrasted generally with the newer development of the jus honorarium (Hunter, 'Roman Law,' 24).
Thus the Roman law presents two aspects, each perhaps equally deserving the attention of the student of jurisprudence. From one point of view it furnishes the sound and scientific basis of the greater part of the modern law of all civilized mankind, and has long proved an inexhaustible storehouse of legal principles. On the other hand, it forms a connecting link be tween the institutions of our Aryan ancestors and the complex organizations of modern so ciety. In its ancient records it takes us back to the very inception of civil jurisdiction, and tracing it down for more than 2,500 years from the Rome of Romulus and Servius Tullius, we see it constitute a legal development not matched in the history of the law of any other people. The oldest fragments of the Roman law that have come down to us are ascribed to theperiod of the kings, but these are essentially traditional and practically insignificant, and we take the XII Tables as the first solid ground in the history of the Civil Law.
2. The Law of the XII About the year 450 B.c a commission from Rome vis ited Greece for the purpose of collecting infor mation necessary to draw up a written code of laws. This fact suggests a foreign or Greek extraction for at least a part of the oldest body of Roman law, although it must of course be conceded that the XII Tables undoubtedly con tained much law of indigenous growth. Three centuries had intervened between the founding of the city and the promulgation of the law of the XII Tables. During this period a certain body of local, customary law had inevitably de veloped, some part of which must have been incorporated into this first written code. Until the time of Diocletian (245-313 A.D.) profes sional lawyers, strictly so called, were not known in Rome. The business of practising law, so to speak, had been up to that time re garded as a public office, which each citizen might be called upon to undertake; but about that time there began to grow up in Rome a class of men among the patricians who made it their business to know the law. Pomponius in his history of the Roman law, written about the middle of the 2d century A.D., informs us that the custody of the XII Tables, the exclu sive knowledge of the forms of procedure and the right of interpreting the law belonged orig inally to the College of Pontiffs, a patrician order, at the head of which was an officer known as the Pontifex Maximus, from which office, it may be remarked in passing, indirectly and by a strange and circuitous devolution has come down to our day the office of the Pope in the Roman Catholic Church. Only a small part of the language of the substantive law of the XII Tables has been transmitted to our time. Some learned attempts have been made to patch out the substance of each table, but it is by no means certain that the exact fragments of any part of the XII Tables have come down to us in their precise original form and expression. The language has probably been essentially modified by the subsequent Latin usage and by repeated transcription; and the fragments have had to be picked out and pieced together from numerous references in the later literature, as for example from Cicero, Dionysius and Gams; so that, as matter of fact, what passes for the substance of the XII Tables is probably largely a speculative patch-work, and in its content and significance certainly more or less misleading.