Kitabı oku: «Beacon Lights of History, Volume 03: Ancient Achievements»

GOVERNMENTS AND LAWS

GREEK AND ROMAN JURISPRUDENCE

624 B.C.-550 A.D

There is not much in ancient governments and laws to interest us, except such as were in harmony with natural justice, and were designed for the welfare of all classes in the State. A jurisprudence founded on the edicts of absolute kings, or on the regulations of a priestly caste, is necessarily partial, and may be unenlightened. But those laws which are gradually enacted for the interests of the whole body of the people,–for the rich and poor, the powerful and feeble alike,–have generally been the result of great and diverse experiences, running through centuries, the work of wise men under constitutional forms of government. The jurisprudence of nations based on equity is a growth or development according to public wants and necessities, especially in countries having popular liberty and rights, as in England and the United States.

We do not find in the history of ancient nations such a jurisprudence, except in the free States of Greece and among the Romans, who had a natural genius or aptitude for government, and where the people had a powerful influence in legislation, until even the name of liberty was not invoked.

Among the Egyptians, Assyrians, and Babylonians the only laws were the edicts of kings or the regulations of priests, mostly made with a view of cementing their own power, except those that were dictated by benevolence or the pressing needs of the people, who were ground down and oppressed, and protected only as slaves were once protected in the Southern States of America. Wise and good monarchs doubtless issued decrees for the benefit of all classes, such as conscience or knowledge dictated, whenever they felt their great responsibilities, as in some of the absolute monarchies of Europe; but they never issued their decrees at the suggestions or demands of those classes for whom the laws were made. The voice of the people was ignored, except so far as it moved the pity or appealed to the hearts and consciences of their rulers; the people had, and claimed, no rights. The only men to whom rulers listened, or by whom they were controlled, were those whom they chose as counsellors and ministers, who were supposed to advise with a view to the sovereign's benefit, and that of the empire generally.

The same may be said in general of other Oriental monarchies, especially when embarked in aggressive wars, where the will of the monarch was supreme and unresisted, as in Persia. In India and China the government was not so absolute, since it was checked by feudatory princes, almost independent like the feudal barons and dukes of mediaeval Europe.

Nor was there probably among Oriental nations any elaborate codification of the decrees and laws as in Greece and Rome, except by the priests for their ritual service, like that which marked the jurisprudence of the Israelites. There were laws against murder, theft, adultery, and other offences, since society cannot exist anywhere without such laws; but there was no complicated jurisprudence produced by the friction of competing classes striving for justice and right, or even for the interests of contending parties. We do not look to Egypt or to China for wise punishment of ordinary crimes; but we do look to Greece and Rome, and to Rome especially, for a legislation which shall balance the complicated relations of society on principles of enlightened reason. Moreover, those great popular rights which we now most zealously defend have generally been extorted in the strife of classes and parties, sometimes from kings, and sometimes from princes and nobles. Where there has been no opposition to absolutism these rights have not been secured; but whenever and wherever the people have been a power they have imperiously made their wants known, and so far as they have been reasonable they have been finally secured,–perhaps after angry expostulations and, disputations.

Now, it is this kind of legislation which is remarkable in the history of Greece and Rome, secured by a combination of the people against the ruling classes in the interests of justice and the common welfare, and finally endorsed and upheld even by monarchs themselves. It is from this legislation that modern nations have learned wisdom; for a permanent law in a free country may be the result of a hundred years of discussion or contention,–a compromise of parties, a lesson in human experience. As the laws of Greece and Rome alone among the ancients are rich in moral wisdom and adapted more or less to all nations and ages in the struggle for equal rights and wise social regulations, I shall confine myself to them. Besides, I aim not to give useless and curious details, but to show how far in general the enlightened nations of antiquity made attainments in those things which we call civilization, and particularly in that great department which concerns so nearly all human interests,–that of the regulation of mutual social relations; and this by modes and with results which have had their direct influence upon our modern times.

When we consider the native genius of the Greeks, and their marvellous achievements in philosophy, literature, and art, we are surprised that they were so inferior to the Romans in jurisprudence,–although in the early days of the Roman republic a deputation of citizens was sent to Athens to study the laws of Solon. But neither nations nor individuals are great in everything. Before Solon lived, Lycurgus had given laws to the Spartans. This lawgiver, one of the descendants of Hercules, was born, according to Grote, about eight hundred and eighty years before Christ, and was the uncle of the reigning king. There is, however, no certainty as to the time when he lived; it was probably about the period when Carthage was founded by the Phoenicians. He instituted the Spartan senate, and gave an aristocratic form to the constitution. But the senate, composed of about thirty old men who acted in conjunction with the two kings, did not differ materially from the council of chiefs, or old men, found in other ancient Grecian States; the Spartan chiefs simply modified or curtailed the power of the kings. In the course of time the senate, with the kings included in it, became the governing body of the State, and this oligarchical form of government lasted several hundred years. We know but little of the especial laws given by Lycurgus. We know the distinctions of society,–citizens and helots, and their mutual relations,–the distribution of lands to check luxury, the public men, the public training of youth, the severe discipline to which all were subjected, the cruelty exercised towards slaves, the attention given to gymnastic exercises and athletic sports,–in short, the habits and customs of the people rather than any regular system of jurisprudence. Lycurgus was the trainer of a military brotherhood rather than a law-giver. Under his régime the citizen belonged to the State rather than to his family, and all the ends of the State were warlike rather than peaceful,–not looking to the settlement of quarrels on principles of equity, or a development of industrial interests, which are the great aims of modern legislation.

The influence of the Athenian Solon on the laws which affected individuals is more apparent than that of the Spartan Lycurgus, the earliest of the Grecian legislators. But Solon had a predecessor in Athens itself,–Draco, who in 624 was appointed to reduce to writing the arbitrary decisions of the archons, thus giving a form of permanent law and a basis for a court of appeal. Draco's laws were extraordinarily severe, punishing small thefts and even laziness with death. The formulation of any system of justice would have, as Draco's did, a beneficial influence on the growth of the State; but the severity of these bloody laws caused them to be hated and in practice neglected, until Solon arose. Solon was born in Athens about 638 B.C., and belonged to the noblest family of the State. He was contemporary with Pisistratus and Thales. His father having lost his property, Solon applied himself to merchandise,–always a respectable calling in a mercantile city. He first became known as a writer of love poems; then came into prominence as a successful military commander of volunteer forces in a disastrous war; and at last he gained the confidence of his countrymen so completely that in a period of anarchy, distress, and mutiny,–the poor being so grievously oppressed by the rich that a sixth part of the produce of land went to the landlord,–he was chosen archon, with authority to revise the laws, and might have made himself king. He abolished the custom of selling the body of a debtor for debt, and even annulled debts in a state of general distress,–which did not please the rich, nor even the poor, since they desired a redivision of lands such as Lycurgus had made in Sparta. He repealed the severe laws of Draco, which inflicted capital punishment for so many small offences, retaining the extreme penalty only for murder and treason. In order further to promote the interests of the people, he empowered any man whatever to enter an action for one that was injured. He left the great offices of state, however, in the hands of the rich, giving the people a share in those which were not so important. He re-established the council of the Areopagus, composed of those who had been archons, and nine were appointed annually for the general guardianship of the laws; but he instituted another court or senate of four hundred citizens, for the cognizance of all matters before they were submitted to the higher court. Although the poorest and most numerous class were not eligible for office, they had the right of suffrage, and could vote for the principal officers. It would at first seem that the legislation of Solon gave especial privileges to the rich, but it is generally understood that he was the founder of the democracy of Athens. He gave the Athenians, not the best possible code, but the best they were capable of receiving. He intended to give to the people as much power as was strictly needed, and no more; but in a free State the people continually encroach on the privileges of the rich, and thus gradually the chief power falls into their hands.

Whatever the power which Solon gave to the people, and however great their subsequent encroachments, it cannot be doubted that he was the first to lay the foundations of constitutional government,–that is, one in which the people took part in legislation and in the election of rulers. The greatest benefit which he conferred on the State was in the laws which gave relief to poor debtors, those which enabled people to protect themselves by constitutional means, and those which prohibited fathers from selling their daughters and sisters for slaves,–an abomination which had long disgraced the Athenian republic.

Some of Solon's laws were of questionable utility. He prohibited the exportation of the fruits of the soil in Attica, with the exception of olive-oil alone,–a regulation difficult to be enforced in a mercantile State. Neither would he grant citizenship to immigrants; and he released sons from supporting their parents in old age if the parents had neglected to give them a trade. He encouraged all developments of national industries, knowing that the wealth of the State depended on them. Solon was the first Athenian legislator who granted the power of testamentary bequests when a man had no legitimate children. Sons succeeded to the property of their parents, with the obligation of giving a marriage dowry to their sisters. If there were no sons, the daughters inherited the property of their parents; but a person who had no children could bequeath his property to whom he pleased. Solon prohibited costly sacrifices at funerals; he forbade evil-speaking of the dead, and indeed of all persons before judges and archons; he pronounced a man infamous who took part in a sedition.

When this enlightened and disinterested man had finished his work of legislation, 494 B.C, he visited Egypt and Cyprus, and devoted his leisure to the composition of poems. He also, it is said, when a prisoner in the hands of the Persians, visited Croesus, the rich king of Lydia, and gave to him an admonitory lesson on the vicissitudes of life. After a prolonged absence, Solon returned to Athens about the time of the usurpation of his kinsman Peisistratus (560 B.C.), who, however, suffered the aged legislator and patriot to go unharmed, and even allowed most of his laws to remain in force.

The constitution and laws of Athens continued substantially for about a hundred years after the archonship of Solon, when the democratic party under Cleisthenes gained complete ascendency. Some modification of the laws was then made. The political franchise was extended to all free native Athenians. The command of the military forces was given to ten generals, one from each tribe, instead of being intrusted to one of the archons. The Ecclesia, a formal assembly of the citizens, met more frequently. The people were called into direct action as dikasts, or jurors; all citizens were eligible to the magistracy, even to the archonship; ostracism,–which virtually was exile without disgrace,–became a political necessity to check the ascendency of demagogues.

Such were the main features of the constitution and jurisprudence of Athens when the struggle between the patricians and plebeians of Rome began, to which we now give our attention. It was the real beginning of constitutional liberty in Rome. Before this time the government was in the hands either of kings or aristocrats. The patricians were descendants of the original Latin, Sabine, and Etruscan families; the plebeians were the throng of common folk brought in by conquest or later immigration,–mostly of Latin origin. The senate was the ruling power after the expulsion of the kings, and senators were selected from the great patrician families, who controlled by their wealth and influence the popular elections, the army and navy, and all foreign relations. Consuls, the highest magistrates, who commanded the armies, were annually elected by the people; but for several centuries the consuls belonged to great families. The constitution was essentially aristocratic, and the aristocracy was based on wealth. Power was in the hands of nobles, whether their ancestors were patricians or plebeians, although in the early ages of the Republic they were mostly patricians by birth. But with the growth of Rome new families that were not descended from the ancient tribes became prominent,–like the Claudii, the Julii, and the Servilii,–and were incorporated with the nobility. There are very few names in Roman history before the time of Marius which did not belong to this noble class. The plebs, or common people, had at first no political privileges whatever, not even the right of suffrage, and were not allowed to marry into patrician rank. Indeed, they were politically and socially oppressed.

The first great event which gave the plebs protection and political importance was the appointment of representatives called "tribunes of the people,"–a privilege extorted from the patricians. The tribunes had the right to be present at the deliberations of the senate; their persons were inviolable, and they had the power of veto over obnoxious laws. Their power continually increased, until they were finally elected from the senatorial body. In 421 B.C. the plebs had gained sufficient influence to establish the connubium, by which they were allowed to intermarry with patricians. In the same year they were admitted to the quaestorship, which office entitled the possessor to a seat in the senate. The quaestors had charge of the public money. In 336 B.C. the plebeians obtained the praetorship, a judicial office.

In the year 286 B.C. the distinctions vanished between plebeians and patricians, and the term populus instead of plebs, was applied to all Roman people alike. Originally the populus comprised strictly Roman citizens, those who belonged to the original tribes, and who had the right of suffrage. When the plebeians obtained access to the great offices of the state, the senate represented the whole people as it formerly represented the populus, and the term populus was enlarged to embrace the entire community.

The senate was an august body, and was very powerful. It was both judicial and legislative, and for several centuries was composed of patricians alone. Its members always belonged to the aristocracy, whether of patrician or plebeian descent, and were supposed to be rich. Under Augustus it required one million two hundred thousand sesterces annually to support the senatorial dignity. The senate, the members of which were chosen for life, had the superintendence of matters of religion and foreign relations; it commanded the levies of troops; it regulated duties and taxes; it gave audience to ambassadors; it determined upon the way that war should be conducted; it decreed to what provinces governors should be sent; it declared martial law in the appointment of dictators; and it decreed triumphs to fortunate generals. The senators, as a badge of distinction, wore upon their tunics a broad purple stripe, and they had the privilege of the best seats in the theatres. Their decisions were laws (leges). A large part of them had held curule offices, which entitled them to a seat in the senate for life. The curule officers were the consuls, the praetors, the aediles, the quaestors, the tribunes; so that an able senator was sure of a great office in the course of his life. A man could scarcely be a senator unless he had held a great office, nor could he often have held a great office unless he were a senator. Thus it would seem that the Roman constitution for three hundred years after the expulsion of the kings was essentially aristocratic. The plebs had but small consideration till the time of the Gracchi.

But after the institution of tribunes a change in the constitution gradually took place, so that it was neither aristocratic nor popular exclusively, but was composed of both elements, and was a system of balance of power between the various classes. The more complete the balance of power, the closer is the resemblance to a constitutional government. When one class acted as a check against another class, as gradually came to pass, until the subversion of liberties by successful generals, the senate, the magistrates, and the people in their assemblies shared between them the political power, but the senate had a preponderating influence. The judicial, the legislative, and the executive authority was as well defined in Roman legislation as it is in English or American. No person was above the authority of the laws; no one class could subvert the liberties and prerogatives of another class,–even the senate could not override the constitution. The consuls, elected by the centuries, presided over the senate and over the assemblies of the people. There was no absolute power exercised at Rome until the subversion of the constitution, except by dictators chosen by the senate in times of imminent danger. Nor could senators elect members of their own body; the censors alone had the right of electing from the ex-magistrates, and of excluding such as were unworthy. The consuls could remain in office but a year, and could be called to account when their terms of office had expired. The tribunes of the people ultimately could prevent a consul from convening the senate, could seize a consul and imprison him, and could veto an ordinance of the senate itself. The nobles had no exclusive privilege like the feudal aristocracy of mediaeval Europe, although it was their aim to secure the high magistracies to the members of their own body. The term nobilitas implied that some one of a man's ancestors had filled a curule magistracy. A patrician, long before the reforms of the Gracchi, had become a man of secondary importance, but the nobles were aristocrats to the close of the republic, and continued to secure the highest offices; they prevented their own extinction by admitting into their ranks those who distinguished themselves,–that is, exercising their influence in the popular elections to secure the magistracies from among themselves.

The Roman constitution then, as gradually developed by the necessities and crises that arose, which I have not space to mention, was a wonderful monument of human wisdom. The nobility were very powerful from their wealth and influence, but the people were not ground down. There were no oppressive laws to reduce them to practical slavery; what rights they gained they retained. They constantly extorted new privileges, until they were sufficiently powerful to be courted by demagogues. It was the demagogues, generally aristocratic ones, like Catiline and Caesar, who subverted the liberties of the people by buying votes. But for nearly five hundred years not a man arose whom the Roman people feared, and the proud symbol "SPQR," on the standards of the armies of the republic, bore the name of the Roman Senate and People to the ends of the earth.

When, however, the senate came to be made up of men whom the great generals selected; when the tribunes played into the hands of the very men they were created to oppose; when the high-priest of a people, originally religious, was chosen politically and without regard to moral or religious consideration; when aristocratic nobles left their own ranks to steal the few offices which the people controlled,–then the constitution, under which the Romans had advanced to the conquest of the world, became subverted, and the empire was a consolidated despotism.

Under the emperors there was no constitution, since they combined in their own persons all the great offices of state, and controlled the senate, the army, the tribunals of the law, the distant provinces, the city itself, and regulated taxes and imposed burdens as they pleased. The senate lost its independence, the courts their justice, the army its spirit, and the people their hopes. And yet the old forms remained; the senate met as in the days of the Gracchi, and there were consuls and praetors as before.

However much we may deplore the subversion of the Roman constitution and the absolute reign of the emperors, in which most historians see a political necessity, there was yet under these emperors, whether good or bad, the reign of law, the bequest of five hundred years' experience. The emperors reigned despotically, but under the forms of legislation. Nor did they attempt to subvert laws which did not interfere with their own political power. What is called jurisprudence they even improved, as that later imperial despot Napoleon gave a code to the nation he ruled. It is this science of jurisprudence, for which the Romans had a genius, that gives them their highest claim to be ranked among the benefactors of mankind. They created legal science. Its aim was justice,–equity in the relations between man and man. This was the pride of the Roman world, even under the rule of tyrants and madmen, and this has survived all the calamities of fifteen hundred years. The Roman laws–founded by the Republic, but symmetrically completed by the Empire–have more powerfully affected the interests of civilization than have the philosophy and arts of Greece. Roman jurisprudence was not perfectly developed until five hundred years after the Christian era, when Justinian consolidated it into the Code, the Pandects, and the Institutes. The classical jurists, like Gaius, Ulpian, and Paulus, may have laid the foundation, but the superstructure was raised under the auspices of the imperial despots.

The earliest code of Roman laws was called the Twelve Tables, framed from the report of the commissioners sent to Athens and other Greek States, to collect what was most useful in their legal systems. The laws of the Twelve Tables were the basis of all the Roman laws, civil and religious. But the edicts of the praetors, who were the great equity judges as well as the common-law magistrates, proclaimed certain changes which custom and the practice of the courts had introduced; and these, added to the leges populi, or laws proposed by the consul and passed by the centuries, the plebiscita, or laws proposed by the tribunes and passed by the tribes, and the senatus consulta, or decrees of the senate, gradually swelled the laws to a great number. Three thousand engraved plates of brass containing these various laws were deposited in the capitol.

Subtleties and fictions were in the course of litigations introduced by the lawyers to defeat the written statutes, and jurisprudence became complicated as early as the time of Cicero. Even the opinions of eminent lawyers were adopted by the legal profession as authoritative, and were recognized by the courts. The evils of a complicated jurisprudence were so evident in the seventh century of the city, that Q. Mucius Scaevola, a great lawyer, when consul, published a scientific elaboration of the civil law. Cicero studied law under him, and his contemporaries, Varus and Aelius Gallus, wrote learned treatises, from which extracts appear in the Digest made under the Emperor Justinian, 528 A.D. Julius Caesar contemplated a complete revision of the laws, but did not live long enough to carry out his intentions. His legislation, so far as he directed his mind to it, was very just. Among other laws established by him was one which ordained that creditors should accept lands as payment for their outstanding debts, according to the value determined by commissioners. In his time the relative value of money had changed, and was greatly diminished. The most important law of Augustus, deserving of all praise, was that which related to the manumission of slaves; but he did not interfere with the social relations of the people after he had deprived them of political liberty. He once attempted, by his Lex Julia, to counteract the custom which then prevailed, of abstaining from legal marriage and substituting concubinage instead, by which the free population declined; but this attempt to improve the morals of the people met with such opposition from the tribes and centuries that the next emperor abolished popular assemblies altogether, which Augustus had feared to do. The senate in the time of the emperors, composed chiefly of lawyers and magistrates, and entirely dependent upon them, became the great fountain of law. By the original constitution the people were the source of power, and the senate merely gave or refused its approbation to the laws proposed; but under the emperors the comitia, or popular assemblies, disappeared, and the senate passed decrees which had the force of laws, subject to the veto of the Emperor. It was not until the time of Septimus Severus and Caracalla (second century A.D.) that the legislative action of the senate ceased, and the edicts and rescripts of emperors took the place of all legislation.

The golden age of Roman jurisprudence was from the birth of Cicero to the reign of the Emperor Alexander Severus, 222 A.D.; before this period it was an occult science, confined to praetors, pontiffs, and patrician lawyers. But in the latter days of the republic law became the fashionable study of Roman youth, and eminent masters arose. The first great lawyer who left behind him important works was Q. Mucius Scaevola, who wrote a treatise in eighteen books on the civil law. "He was," says Cicero, "the most eloquent of jurists and the most learned of orators." This work, George Long thinks, had a great influence on contemporaries and on subsequent jurists, who followed it as a model. It is the oldest work from which there are any excerpts in the Digest.

Servius Sulpicius, the friend of Cicero and his fellow-student in oratory, surpassed his teachers Balbus and Gallus, and was the equal in reputation of the great Mucius Scaevola, the Pontifex Maximus, who said it was disgraceful for a patrician and a noble to be ignorant of the law with which he had to do. Cicero ascribes the great superiority of Servius as a lawyer to the study of philosophy, which disciplined and developed his mind, and enabled him to deduce his conclusions from his premises with logical precision. He left behind him one hundred and eighty treatises, and had numerous pupils, among whom A. Ofilius and Alfenus Varus, Cato, Julius Caesar, Antony, and Cicero were great lawyers. Labeo, in the time of Augustus, wrote four hundred books on jurisprudence, spending six months in the year in giving instruction to his pupils and in answering legal questions, and the other six months in the country in writing books. Like all the great Roman jurists, he was versed in literature and philosophy, and so devoted to his profession that he refused political office. His rival Capito was equally learned in all departments of the law, and left behind him as many treatises as Labeo. These two jurists were the founders of celebrated schools, like the ancient philosophers, and each had distinguished followers. Gaius, who flourished in the time of the Antonines, was a great legal authority; and the recent discovery of his Institutes has revealed the least mutilated fragment of Roman jurisprudence which exists, and one of the most valuable, which sheds great light on ancient Roman law; it was found in the library of Verona. No Roman jurist had a higher reputation than Papinian, who was praefectus praetorio under Septimius Severus (193 A.D.),–an office which made him second only to the Emperor, a sort of grand vizier, whose power extended over all departments of the State; he was beheaded by Caracalla. The great commentator Cujacius declares that he was the first of all lawyers who have been, or who are to be; that no one ever surpassed him in legal knowledge, and no one will ever equal him. Paulus was his contemporary, and held the same office as Papinian. He was the most fertile of Roman law-writers, and there is more taken from him in Justinian's Digest than from any other jurist, except Ulpian. There are two thousand and eighty-three excerpts from this writer,–one sixth of the whole Digest. No legal writer, ancient or modern, has handled so many subjects. In perspicuity he is said to be inferior to Ulpian, one of the most famous of jurists, who was his contemporary. Ulpian has also exercised a great influence on modern jurisprudence from the copious extracts of his writings in the Digest. He was the chief adviser of Alexander Severus, and like Paulus was praefectus praetorio. The number of excerpts in the Digest from him is said to be two thousand four hundred and sixty-two, and they form a third part of it. Some fragments of his writings remain. The last of the great civilians associated with Gaius, Papinian, Paulus, and Ulpian, as oracles of jurisprudence, was Modestinus, who was a pupil of Ulpian. He wrote both in Greek and Latin. There are three hundred and forty-five excerpts in the Digest from his writings, the titles of which show the extent and variety of his labors.