HISTORY AND NATURE OF LAWS. 



Of these high magistrates, there were different 

 numbers at different times ; but the supreme 

 authority vested in two, one having jurisdiction 

 over the city, the other over the provinces. The 

 praetor held his office for a year ; and as a pro- 

 vision against his adapting his judgments to his 

 own personal views, the Cornelian law obliged him 

 to issue a sort of proclamation at the commence- 

 ment of his magistracy, embodying the general 

 principles to which he should adhere in his judg- 

 ments ; and thus, at the moment when he was 

 least acquainted with the duties of his office, he 

 "had to fix the plan on which he was to execute 

 them. The praetor was not originally vested with 

 legislative power it arose in the exercise of his 

 judicial authority. He was merely the interpreter 

 of the laws ; but when they seemed to him to be 

 hard, or otherwise erroneous, he did not scruple to 

 suspend or alter their execution. The praetorian 

 law has been compared to the equity system in 

 England a distinct system of law, arising out of 

 those instances in which it was necessary to give 

 relief from the strict interpretation of the common 

 law. The common law had fixed a particular 

 rule ; a case would arise in which its application 

 would be very oppressive ; the common-law judges, 

 bound by their system, could give no relief ; but 

 the chancellor took upon him to modify the evil, 

 not by altering or developing the common law, so 

 as to meet such cases in future, but by giving an 

 equitable decision in the particular case, which 

 decision was followed in like cases. By an enact- 

 ment of the Emperor Hadrian, called the ' Per- 

 petual Edict,' this doubtful and fluctuating branch 

 of the law at least as much of it as the emperor 

 chose to sanction received what might be called 

 the royal assent, and was incorporated with the 

 other portions of the civil law, as a distinct branch 

 of the system. 



It is a peculiarity of the civil, as distinguished 

 from the English jurisprudence, that, according 

 to the former, a law may be tacitly abrogated by 

 long disuse. This, like many other principles 

 of the civil law, was adopted by the law of 

 Scotland. 



The last fountain of Roman jurisprudence is 

 the Responsa Prudentum literally, the answers 

 of the wise men the opinions of the sages of 

 the law. Even in England, where interference 

 with the doctrines of the common law is so 

 jealously opposed, the early commentators are 

 the only authority for its provisions ; and there 

 is no doubt that they gave the hue of their 

 own opinions to the doctrines they laid down. 

 In Scotland, still greater influence has been 

 exercised by the Text writers. In Rome, how- 

 ever, where the profession of the law conferred 

 a high rank in society, the opinions of leading 

 counsel had a much more extensive range. At 

 an early period, the relation of lawyer and client 

 was that of patron and dependent. Patricians 

 alone could act as lawyers, and the science was 

 involved in riddles to which they only possessed 

 the key. The poor client was dependent on 

 the good-will of his patron for such protection 

 from oppression, whether through the law or 

 otherwise, as the influence of the latter might 

 enable him to afford. When population and 

 transactions increased, and the laws, instead 

 of a mystery, became a serious study, which 

 depended more on laborious application than 



simple initiation, the profession was opened to 

 plebeians. It became not an unusual case, at a 

 still more advanced period, for the patron and 

 lawyer to be separated the former being chosen 

 for his influence; the latter, for his skill The 

 forms which regulated the intercourse between 

 patron and client, however, still retained some 

 relics of their origin ; and it is a striking illustra- 

 tion of the influence which Roman jurisprudence 

 has exercised over the human race, to find these 

 still existing. To this day, it is against eti- 

 quette to bargain with a barrister for his work. 

 The law gives him no claim for remuneration, 

 which it views as unworthy the dignity of his 

 profession; and it is usual to pay him before- 

 hand for his legal assistance. On the other hand, 

 though he has been paid beforehand, he cannot 

 be compelled to perform any duty in return, for 

 he is presumed to assist the client from his own 

 free good-will 



Under the earlier emperors, the privilege of 

 promulgating authoritative opinions was confined 

 to a limited number of lawyers, of equestrian 

 rank, licensed by the government ; but the profes- 

 sion was again thrown open to the public by 

 Hadrian. The most brilliant era of legal wisdom 

 commences within a short period of the decline of 

 the republic, and terminates with the reign of 

 Alexander Severus. Mucius Scaevola, the tutor of 

 Cicero, was one of its earliest ornaments ; and it 

 included the celebrated jurisconsults, Paul, Ulpian, 

 Papinian, Capito, and Labeo. The last two of 

 these, who lived in the age of Augustus, were the 

 founders of the two sects called after two of 

 their disciples the Proculians and Sabinians. 

 The former advocated the doctrine that the 

 laws should be amended at discretion, to meet 

 circumstances as they occurred ; the latter main- 

 tained the theory of their strict interpretation, 

 be its inexpediency in the particular instance what 

 it may. Capito, conforming his doctrines to the 

 inroads which the emperors were gradually mak- 

 ing in the freedom of the republic, was a supporter 

 of this species of innovation, and his followers 

 were enrolled among the ready tools of despotism. 

 Labeo sought to support the ancient freedom of 

 the republic by an adherence to the letter of the 

 old laws, and his sect became the champions of 

 what may be termed constitutional freedom. 



Having now enumerated the principal sources 

 of the Roman law, we may notice its remarkable 

 epochs. The laws enacted during the reigns of the 

 kings exercised too little influence on the civil 

 law, as handed down to modern Europe, to 

 be of much practical importance. During the 

 administration of the decemvirs, the celebrated 

 laws of the Twelve Tables were adopted. The 

 traditionary history connected with this code is, 

 that the Roman government, conscious of the 

 want of a proper legal system, sent commissioners 

 to Greece, who, after studying the laws of that 

 comparatively civilised nation, produced the 

 Twelve Tables for the acceptance of the Romans. 

 The tradition, like many others connected with 

 the Roman history of the period, has not suffi- 

 cient historical evidence to support it Like 

 the first laws of other rude states, they are 

 simple and brief in their enactments. The 

 bankruptcy system which has so sadly shocked 

 several benevolent scholars, that they have en- 

 deavoured to explain it as a merely symbolical 



