PROBLEMS OF ROMAN LEGAL HISTORY 



BY MUNROE SMITH 



[Munroe Smith, J.U.D., Professor of Roman Law and Comparative Jurisprudence, 

 Columbia University, b. Brooklyn, N. Y., 1854. A.B. Amherst College, 1874; 

 Columbia University Law School, 1875-77; LL.B. ibid. 1877; Berlin, Leipzig, 

 and Gottingen Universities, 1877-80; J.U.D. Gottingen, 1880; Lecturer on 

 Roman Law, Columbia University, 1880-91; Adjunct Professor of History, 

 ibid. 1883-91; Lecturer on Roman Law, Georgetown University Law School, 

 1902-05; Fellow of New York Academy of Political Science, Member American 

 Historical Association, American Political Science Association, Societ6 de 

 Legislation Compare"e, Internationale vereinigung fur vergleichende Rechts- 

 wissenschaft. Author of Bismarck and German Unity, 1898; chief editor Polit- 

 ical Science Quarterly.} 



To attempt to recapitulate, within the limits of a spoken address, 

 the unsolved problems of Roman legal history would be an absurdity. 

 Such an undertaking would make it necessary for us to follow the 

 development of the Roman law from the Twelve Tables to Justinian's 

 law-books in order to indicate what portions of this millennial move- 

 ment are still obscure. Even then the survey would be incomplete, 

 since the history of the Roman law neither begins with the Twelve 

 Tables nor ends with Justinian. It begins at that unknown date 

 when Rome began and it has not ended yet. To select a narrower 

 period and to single out what seem the more important problems 

 would be more feasible; but the mere enumeration of difficulties 

 would be neither interesting nor profitable. 



The best excuse for a paper on the problems of any science is the 

 writer's conviction or hope that he may be able to make some con- 

 tribution toward their solution, if it be only by suggesting unworked 

 lines of investigation which appear to him to promise useful results. 

 It is my belief that for the most important period of Roman legal 

 history the period in which the ancient Roman law, public and 

 private, reached its highest development, and which extended, 

 roughly speaking, from the middle of the third century B. c. to the 

 middle of the third century A. D. there is a promising method of 

 investigation or line of approach which as yet has been scantly 

 utilized. The method which I advocate is that of comparison; and 

 the comparison which I suggest is with Anglo-American legal de- 

 velopment from the thirteenth century to the present day. 



The older lines of investigation seem to be worked out. It is not 

 likely that new material of importance will be discovered; we can 

 hardly hope for a second find like the fourth book of the Institutes of 

 Gains; and all direct methods of interpreting the existing sources 

 have been so diligently and ably exploited by European jurists, from 

 Cujacius to Mommsen and Lenel, that every student of the Roman 



