Body of Civil Law (Corpus Iuris Civilis) Vol. I (Digest)

and by it they comprehend those things which are constituted generally concerning all things or persons: therefore law is defined as a common precept (l. 1. ff. de leg.). In the same sense, Aristotle (Book 1, Rhetoric, c. 1) says it is the office of the legislator to decree not concerning singular or present matters, but concerning future or universal ones, because the judgment of the legislator is not in part, nor concerning present things, but concerning future and general ones original: "ὅτι ἡ μὲν τοῦ νομοθέτου κρίσις οὐ κατὰ μέρος οὔτε περὶ τῶν παρόντων, ἀλλὰ περὶ μελλόντων τε καὶ καθόλου εἰσί.". Gellius (Book 10, c. 20), treating matters that pertain to jurisconsults, rejects from the usage of law those things which have been cautioned concerning a special thing or person. Such as that concerning the Command of Cn. Pompeius, concerning the return of Marcus Cicero, concerning the slaughter of P. Clodius. Polybius and Dionysius of Halicarnassus also grasped the proper usage of law when they distinguish these three things: to create magistrates, to enact laws, and to declare war. It is one thing to enact a law, another to do something by law; magistrates were created by law; war was declared by law. But a law was made when something was constituted generally for the utility of private individuals: this alone the jurisconsults who flourished when the Republic was extinct undertook to interpret, omitting those things which look to the administration of the Republic, since these were left to the will of the prince.

§. 9. But the general and common word was proposal rogatio, by which the people were asked concerning a decree, whether general or special, to be constituted; and whatever magistrate held the assemblies about any matter, he proposed, that is, he consulted the people or the plebs. Festus, in the word rogat: "He proposes, that is, he consults the people and asks from them that they enact what he brings forward," whence we also have in custom the word for to seek and to pray. Cato, in his dissuasion that the Rabia law be proposed, says: "I will do this rather, which he proposes here;" and the people, who responded through curiae or centuries, or the plebs through tribes, if they assented to the law to be passed with a clear voice—after the Gabinian ballot law was passed—shouted: "as you propose." But also with Calpurnius Piso and M. Popilius Laenas as consuls in the year 602, tablets began to be given, on one of which was written "as you propose," on the other "I dissent" original: "antiquo" — literally "I vote for the old way". He who assented to the law being passed gave the former, but he who intervened and hindered the legislation gave the latter; therefore, proposal is taken generally among the Jurisconsults. Among others, however, it is taken for a privilege, as in Festus: a proposal is when the people are consulted concerning one or several men, which does not pertain to all, and concerning one or several things about which it is not sanctioned for all. For what the people have decreed concerning all men or things is called a law.

HISTORY OF THE LAWS OF THE XII TABLES.

§. 10. Since I have briefly touched upon certain chapters concerning the laws of the Roman people and the rite of proposing them, as far as the place allows, now the laws of the twelve tables occur, which surpass other laws in authority and splendor. Therefore, they are called by various authors by the name of law pre-eminently, the appellation of the proper name fulfilling its office, and a peculiar consideration of these ought to be had, both because of the significant change in the Republic which happened upon the passing of these laws, and because of their expression in twelve tables, which therefore gave the beginning to Roman Jurisprudence and constituted its foundation. In the year 300 from the founding of the city, legates were sent to Athens, and ordered to describe the famous laws of Solon and to learn the institutions, customs, and laws of other Greek cities: then in the year 302, when the legates had returned with the Attic Laws, the people were consulted about creating decemvirs, and in the year 303 from the founding of the city, the decemvirs were created, and the supreme right in the city was given to them for that year, so that they might correct the laws, if there was need, and interpret them. They existed complete in the times of Diodorus Siculus,

and the written legislation, composed briefly and without superfluity, remained and was admired until our own times original: "ἡ δὲ γραφεῖσα νομοθεσία βραχέως καὶ ἀπερίττως συγκειμένη διέμεινε θαυμαζομένη μέχρι τῶν καθ' ἡμᾶς καιρῶν.". This description of laws, brief and devoid of all ornamentation, lasts until these times. Indeed, in the time of D. Cyprian they were frequently read and still survived, flying about through the hands of all, as he writes to Donatus in Epistle 2, Book 2. Gellius also had them complete, as can be gathered from Book 20, c. 1. But they perished by the same fate as various other desired works: yet certain fragments remain, because they were frequently used and committed to memory by all who embraced letters and wrote books at Rome, as Cicero says in his book On Laws: "We children learned the twelve tables as a necessary song, which now no one learns." And from them, as if from a common pantry, many things were elicited, and they were preferred to complete libraries, as Crassus says in Cicero's Orator, who increases our longing for such a work with these words: "Though all may protest, I will say what I think: the little book of the 12 Tables alone, if one considers the sources and heads of the laws, seems to me to surpass the libraries of all the philosophers in both the weight of its authority and the richness of its utility." These fragments, however, which are found in Varro, Pliny, Gellius, Festus, and our Jurisconsults, I do not need to report here either by institution or by location. The present volume of Roman civil law exhibits them, to which they are added at the end. The Jurisconsult of immortal name, Jacobus Gothofredus, restored them to their own order, together with their History, Proofs, Notes, and Glossary, in his Four Sources of Civil Law.

§. 11. In these laws, the first foundations of Jurisprudence were cast, and in these principles the hinge of all interpretations turned, and they were weighed with the greater study the more they provided for the tranquility and utility of individuals, with the exception of few which look to sacred and public law: for they established necessity for the first obligations, weight and authority for paternal right and marriages, certain and established rules for inheritances and guardianships, security for dominions and possessions, certain and legitimate penalties for delicts, and finally they prescribed an order for judgments, as can be conjectured even from the fragments themselves, collected by the diligence of many, from which not only what is established, but what ought to be established, can be elicited; since all things could not be comprehended by laws (l. 7. ff. de leg.).

§. 12. Having briefly premised the origin of the laws and the manner of their being passed, it follows to speak about the Jurisconsults, about their responses and interpretations, which are accustomed to be desired when laws are passed and to be in need of the authority of the Prudent meaning the Jurisconsults (d. l. 2 §. iis legibus). And before all things, the responses of the Jurisconsults must be distinguished from the laws. Laws are the sources and heads of civil law, from which jurisprudence was then propagated. The responses of the Jurisconsults are the rules and principles of law, which the jurisconsults constituted when they attempted to touch the mind of the legislators and to elicit the genuine sense of the laws: and having made a manifold collection of rules and having had a selection of precepts, they founded civil law (l. 2. §. post hos). Laws by themselves could not constitute the science of civil law, and are rather to be called the sources and heads of the law than parts of it. For just as no one would rightly call Solon, Lycurgus, or Numa jurisconsults, but legislators, so no one would properly say laws are simply the art of the good and the equitable; therefore, Aristotle (Book 5, Nicomachean Ethics 6) says law consists in law, that is, it is elicited and collected from laws, for "political justice" was according to law and in those things in which law is naturally inclined to exist original: "κατὰ νόμον γὰρ ἦν (δίκαιον τὸ πολιτικόν) καὶ ἐν οἷς ἐπέφυκε εἶναι νόμος.". Justice consists in law and has place among those for whom there is law.