Page:The American Cyclopædia (1879) Volume IV.djvu/631

CIVIL LAW 619 of this collection are few and of very doubtful character. After the kings were expelled, A. U. 0. 244, Rome became a republic, and two consuls elected annually were substituted for the king. The adoption of laws and the election of magistrates now took place in the comitia centuriata, in which the patricians by their rank and wealth overbalanced the plebe- ians. Therefore the tribunes of the plebs (A. U. C. 260) were established, chosen from the plebeians to protect their rights. They had at first only the right to protest against the decrees of the consuls and the senate, and to render them ineffective by their veto ; but they soon after acquired also the right, as chiefs of the plebeians, to propose laws to them in the comitia tributa, which were only subjected to the discussion and suffrage of the plebeians. These laws were called plebiscites. Besides the tribunes, two other magistrates of their own, called aediles, were at the same time grant- ed to the plebeians. Their duty was to take charge of the police, and attend to the public welfare in respect of certain edifices and ar- chives. From all other higher offices the ple- beians continued to be excluded, and it was not till the second period that the dignities of consul, ffidilis, curulis, dictator, censor, praetor, and at last even that of pontifex, became acces- sible to them. About A. U. 0. 300 the cele- brated law of the twelve tables was enacted. This law bears the character not of a new civil code, but rather of a constitution, being, as it were, an act of capitulation of each class to the other. Its main purpose was to establish by law the equality of the patricians and plebe- ians ; to define the limits of the judicial power, then in the hands of the consuls ; and to regu- late judicial proceedings. Moreover, a large part of the private law, as it had existed for a long time previous, was now committed to wri- ting ; and thus the twelve tables formed a com- pilation in writing of the customary law existing at that time. Generally speaking, details were omitted and principles only were embodied ; but in some instances, as for example the rules for observance of funeral services, the laws and obligations between neighbors, and the conduct of the creditor toward his debtors, they descend into minute details. At the same time the old laws peculiar to the different tribes were merged in one national system. This law of the twelve tables, adopted in the comitia centuriata, ac- quired great authority, and constituted the foundation of all the public and private law of the Romans subsequently, until the time of Justinian. By way of distinction it is some- times called lex, law, or lex decemviralis, law of the ten commissioners. The twelve tables were originally engraved upon wood or ivory, and publicly exposed before the rostra that they might be read by every one. After the devastation of Rome by the Gauls (A. U. 0. 364), they were engraved on brass, and were found thus exposed in the 3d century of the Christian era. But we have now only frag- ments of them, collected from the commenta- ries of Gaius, contained in the Pandects, from Ulpian's fragments, and from Festus De Verbo- rum Significatione. The Institutes of Gaius (discovered A. D. 1816) and the Vatican Frag- ments (1823) have also supplied some genuine passages previously unknown. Second Period, A. U. C. 300-650. The sources from which the law of the twelve tables and the unwritten law were supplied and developed were princi- pally two, the written law and the unwritten law, that is, the law established by custom. The improvement of the law was effected by the judges and lawyers. The written law com- prised the law decreed by the people (leges), the plebiscita, and the decrees of the senate (senatus consulta). The decrees of the Roman people were laws proposed by a magistrate presiding in the senate, and adopted by the people in the comitia centuriata. These rela- ted principally to the public law. The plebis- cita were laws proposed by one of the tribunes, and passed by the plebeians alone, in the comi- tia tributa, independently of the patricians. They were at first binding only on the plebe- ians, until in A. U. C. 305 a law was passed that they should be binding on the whole peo- ple. The plebiscita related more to private law. The decrees of the senate had generally reference to public laws. The tribunes had the right to protest against them. The law of custom related to private law. The kinds of this law were, the manners and customs of their ancestors, and transmitted to their de- scendants (mores majorum) the law which originated from the opinions and usages of the people (consuetudo) ; and the law formed by uniform judicial decisions in similar cases, and which the French call la jurisprudence des arrets, and the Germans call Praktik, or judi- cial usage (usus fori), and which is in England and the United States the common law, as de- clared and established by the decisions of the highest tribunals. The greatest influence upon the development of the law was exercised by the prastors and other higher magistrates through their edicts, and by the lawyers through their commentaries on them, and their prac- tical application of them to cases. The supreme judicial power was originally vested in the kings, and afterward, in the consuls, who exer- cised it personally. After A. U. C. 387, a new magistrate for the administration of civil justice was established at Rome, under the title of city praetor (praetor urbanus). This word is derived from prceire, to go before, and was in use in Latium to designate the chief magistrate of a city. His jurisdiction was at first restrict- ed to cases in which both parties were Roman citizens ; but the continual increase of strangers residing at Rome led to the appointment of another praetor about A. U. C. 508, to decide in cases of lawsuits of the non-Romans among themselves, or with Romans, and who was called prator peregrinus (the praetor for stran- gers). The Roman law proper was applicable