HISTORY OF THE MIL LAW.
I. The Roman City Late (juts virile), during the Royal Period (down to about n.c. 500). was largely religious in its character. The patricians had 'sacral,' or ref igions,customs which controlled the public law of the city and regulated their own family relations. The so-called Royal Laws (leyes regal.). of which some fragments have been preserved, were obviously priestly formula tions of these customs. The plebeians apparently had no share in this religious law. and they cer tainly had special forms of marriage and of testa ment. The customs regulating property and debt were the same for both orders, and were secular in their character. The interpretation of all law, however, whether religious or secular, rested with patrician priests; and after the expulsion of the kings the enforcement of the law was in the hands of patrician magistrates. In conse quence of and agitation. the non-political custom of the city was reduced to writing: and the Law of the Twelve Tables, thus drafted, was submitted to and accepted by the popular assembly (e.451-50 n.e.) This code. of which numerous fragments have conic down to us. set forth simple rules suitable to an agri cultural community, in a remarkably clear and terse fashion. It established equal law for both exeept in the matter of marriage; and a few years later (e.445 n.e.) even this inequal ity was removed. This la W was prized lwy the Romans as a charter of liberties, and they were reluctant to amend its provisions by legislation. The necessary development of the law was there fore obtained during the following three cen turies by interpretation. For two centuries the priestly order remained the authoritative inter preters; but after n.e. 252. when a plebeian be 1.:1111V pont ;frr mfr.rimos, the legal system lost its predominantly reliaions character. With the expansion of Rome, its law was extended over Latium; but the Roman city law was not ap plicable to the Italian allies (soeii), unless ex pressly made so by treaty. The best reconstruc tion of the Royal Laws is that of Voigt ; of the Twelve Tables, that of Dirksen and Scholl. Both may conveniently be consulted in Bruns, Fontes finis Romani Leges et Negotia (Gth ed., Mominsen and Gradenwitz, editors, Leipzig, 1893).
II. Roman J1 (WI terra nea n Law ( jus gen I ).—The extension of Roman rule over the Alediterrancan basin compelled the Romans to work out a new system of law. The Roman city law was nut, in theory, applicable to the provincials, since these were not citizens, but subjects; and it would have been ill suited to the needs of Mediterranean commerce. Between the years B.C. 250 and 150, the new law re quired was developed: (1) in the edict of the pretor of 111e foreigners (prwtor peregrinorum), N•h administered justice in thane in all contro versies except those in which both parties were citizens: and (2) in the edicts of the provincial governors (proconsuls and pr(mreto•s). In mat ters of purely local interest (e.g. family rela tions and inheritance) the provincial edicts ap parently preserved local usages; but. in matters of commercial interest the provincial edicts were patterned after the edict of the foreign pretor in Rome. A common law of property. of con tracts, and of judicial procedure was thus estab lished for the entire Mediterranean basin. The sources of this law, according to the Romans, were the usages of all the ancient peoples ( jus gent ) and natural reason. During the last century of the Republic, the rules of the new system were gradually made applicable to con troversies between Roman citizens. This was ac complished in the edict of the city pretor. Lt this edict, moreover, the Roman law of inheri tance was modified and made more equitable. Of the city edict in its final form, much has been preserved. The best reconstruction is that of Lenel, Das Edict m (Leipzig, 1883).
III. Routes Imperial w.—At the close of the Republican Period. Roman citizenship had been extended throughout Italy. Under the Empire it was gradually extended through the provinces, 111110, early in the third century. Ca•a calla made all the free inhabitants of the Empire Roman citizens. With this change the city law of Rome became, in theory, the la w,of the Etn ldre. The pretor of the foreigners and his edict disappeared; but the city edict and the pro vineial edicts remained in force. These, how ever, had ceased to develop: the city edict re ceived its final revision in the reign of Iladrian (.‘.n. 117-138). During the first three centuries
of the Empire, the law was developed partly by legislation, proceeding from the Emperor and the senate, partly by juristic interpretation. Legislation gradually effaced provincial diversi ties: interpretation fused the city law and the preto•ian law into a harmonious system. In this period, the leading jurists were drawn more directly than before into the administration of justice. Three of the most Papinian. Paul. and Ulpian, were successively chief justices of the Roman Empire. The juristic literature of the late Republic and early Empire (me. 100 to 250) was very extensive, and of the high est order of excellence. It consisted largely of the collection and criticism of recorded decisions (responsa) and the scientific formulation of the principles on which they were based; that is, it was substantially a progressive digesting of case law. Little of this literature has been pre served, except in the Digest of Justinian. Of the works which have survived—which may com-e niently be consulted in Buschke, Ju•isprudentiw A n le ju st inia new quar sit persunt (5th ed., Leip zig, 1880—the most important are the institutes of Gains and fragments of Paul's .`.4cntences and Ulpian's Rules. (Gains has been translated by Poste, Oxford, 1871, 3d ed. 1890; Gains and Elpian by Abdy and Walker, Cambridge, Eng., 1876, 3d ed. 1S85; and by itluirhead, Edinburgh, 1880, 2d ed. 1895.) IV. Cod/peat/um—After the middle of the third century, the law was developed solely by Imperial constitutions, viz. decisions (reseripta) and enactments ((eyes). The first attempts at codification were systematic arrangements of these constitutions. Such were the Codex G re goria nus A.D. 293) and a supplementary Coder Ifermogenia nits, published in the following century. These were private compilations. The first official revision of the Imperial laws was made under the direction of the Byzantine Em peror Theodosius 11. The Codex Thcodosianus was published A.D. 438, not only in Constanti nople, hut also, by arrangement with Valentinian 111., in Rome. The greater part of this code has come down to us. The fullest edition is by Mittel, 1842. Some additional fragments have been edited by Kriiger (1880). Theodosius had entertained, but did not carry out, a broader plan, involving an official digest of the older law, as set forth in the juristic literature. This plan was taken up by the Byzantine Emperor Jus tinian, and carried out under the direction of his minister, Tribonian. The law books pub lished by Justinian were: (1) 1 ast it u I es (Novem ber 21, A.D. 533). This book, which sets forth the elements of the is based on the Insti tutes of Gait's. It was intended primarily for law students, but it was published with statu tory force. (2) Digest or Pandects (December Iti, 533), a full exposition of the older law. civil and pretorian. It is composed of excerpts from the juristic literature of four centuries (c.100 B.C. to c.300 A.D.)—chietl•, however, from the literature produced between A.D. 130 and A.D. 230. The greater part of the excerpts seem to have been reproduced without change; lint antiquated terms were replaced by those current in the sixth century, and in some eases the passages quoted were condensed or amplified. Like the litera ture from which it was compiled, the Digest is substantially a collection of case law. (3) Codex (April 7. 529: 'second reading,' December 17. 534)—a revised collection of Imperial con stitutions, based on the earlier codes and replac ing them. The language of these law books is Latin, although some passages in the Digest and many of the constitutions in the Code are in Greek. During the remaining years of his reign, Justinian issued many new constitutions (W 1-01 (r) , mostly in Greek; but of these no official compilation was made. The combination of the Novels NVitln the other hit NV books of Justinian, tinder the general title Corpus ./u•is Ciril is. dates the twelfth century. The best edition i5 that by Monunsen and E rilger. There are com plete French and German translations of the Corpus Janis, but only the institutes have been translated into English (3loyle's Institutes, 2d ed. IS90). For the history of Roman law to Justinian, the best English work is by 3luirhead, Historical Introduction to the Prirate Law of Rome (2d ed., Edinburgh, ISM.