laws were read. The decemvirs declared, that they had provided, as far as their abilities could provide, that the laws should be equal and impartial to the high and to the low; but that on the counsels and deliberations of the citizens at large, more reliance could be placed; for that the Roman people should have no laws, but such as were ratified as well as ordered by the consent of all." The ten tables received the solemn ratification of the people. Two more were afterwards added in a second decemvirate. All these formed the celebrated code of the twelve tables; the fountain, as Livy honourably denominates them, of all publick and private law. They constituted the foundation of that immense fabrick of jurisprudence, which has extended the influence and the glory of Rome, far beyond the limits and existence of the Roman power.

To the twelve tables, after some time, the responsa prudntum began to be superadded. These were the commentaries of lawyers, who accommodated them to the successive practice and proceedings of the courts of justice. This part of the law was denominated, in contradistinction to the laws of the twelve tables, the jus non scriptum, or unwritten law; and having no other name, began then to be called the civil law. By Justinian, it is styled the jurisprudentia media; because it intervened. between the laws of the twelve tables, and the imperial constitutions. v

In the free and happy periods of the Roman commonwealth, great regard was paid to customary law. We

Livy. 1. 3. c. 34.

v Burn's Ecc. Law. Pref. 1,

W

have already seen, on another occasion, that it was thought immaterial whether a law received the sanction of the people by their formal suffrage, or by the uniform course of their conduct and manners. Thus did Romans speak and reason while they enjoyed the blessings of liberty. Nor did the spirit of their law change immediately with the spirit of their government. Long after the impure air of despotism tainted the latter, the vital principles of freedom continued the former in a tolerable state of internal health and soundness. Even under the emperours, the opinions of the Roman lawyers, and the decisions of the Roman courts, with regard to property, and to the rights of private persons, seem not to have been vitiated by the principles of their government. The rules of justice among individuals could not prejudice, in the most remote degree, the power or the interest of the emperour, placed above the reach of all private regards; their rights were, therefore, investigated and enforced with a balanced impar tiality. *

I have observed, that, in the free and happy periods of the Roman commonwealth, great regard was paid to customary law. Even so late as the time of Justinian, the unwritten law constituted one of the two great divisions, into which the system of Roman jurisprudence was thrown. "Constat," says the emperour, autem jus nostrum, quo utimur, aut scripto, aut sine scripto ;

w Ante. vol. 1. p. 63. 64.

у

x Consult Gibbon's Rom. Emp. c. 44. vol. 8. p. 19. and the authorities cited in his notes.

y Just. Ins. 1. 1. t. 2. s. 3,

66

ut apud GræcoS των νόμων οι μεν εγγαρφοι, οι δε αγραφοι." σε Our law, which we use, consists, like the law of the Grecians, of what is written, and of what is unwritten." This passage, by the by, strongly intimates, in the Institutes, a principle of attachment and imitation operating in favour of the Grecian system. This principle appears, in the most explicit manner, from what we find in the next section of the Institutes. "Et non ineleganter in duas species jus civile distributum esse videtur; nam origo ejus ab institutis duarum civitatum, Athenarum scilicet et Lacedæmoniorum, fluxisse videtur. In his enim civitatibus ita agi solitum erat, ut Lacedæmonii quidem. ea, quæ pro legibus observabant, memoriæ mandarent: Athenienses vero ea quæ in legibus scripta comprehendissent, custodirent." "The civil or municipal law is divided, with some degree of elegance, into two kinds. For its origin seems to be derived from the institutions of two states-that of the Athenians, and that of the Lacedæmonians. In those states, the manner of transacting their legislative business was such, that the Lacedæmonians trustedto memory for the preservation of their laws; whereas the laws of the Athenians were committed to writing."

Concerning unwritten or customary law, Justinian thus expresses himself. "Sine scripto jus venit, quod usus approbavit ; nam diuturni mores, consensu utentium comprobati, legem imitantur." "The unwritten law supervenes upon the approbation of usage; for long customs, approved by the consent of those who use them, acquire the qualities of a law." By the way, it deserves to be remarked here, that the expression, which, on a former occasion, I cited from an act of parliament as y Ante. vol. 1. p. 208.

characteristick of the common law of England, is the literal translation of the expression used by Justinian to characterize the unwritten law of the Roman empirediuturnus-long. The epithet immemorial is used by neither of those very high authorities.

If unwritten law possessed such a dignified rank in the system of Roman jurisprudence so late as even the. reign of Justinian; we may be well justified in supposing that this species of law was entitled to a still greater proportion of regard, four or five centuries before that time. Four or five centuries before that time, it was extended to the island of Great Britain.

The jurisprudence, which had been grossly adapted to the wants of the first Romans, was polished and improved, towards the latter years of the commonwealth, by the infusion and operation of the Grecian philosophy. The Scævolas had been taught by precedents and experience. But Servius Sulpicius was the first civilian, who established his art on certain and general principles. For the discernment of truth and falsehood, he applied, as an infallible rule, the logick of Aristotle and the Stoicks, reduced particular cases to general principles, and diffused, over the dark and shapeless mass, the light of order, and the graces of eloquence.

The jurisprudence of Rome was adorned and enriched by the exquisite genius of Cicero, which, like the touch. of Midas, converts every object into gold. In imitation of Plato, he composed a republick: and for the use of his republick, formed a system of laws. In this

system, he expatiates on the wisdom and excellency of the Roman constitution."

Julius Cæsar was the first Roman who visited the island of Great Britain; and, perhaps, he had no great reason to exult in the success of his visit. His own account of his retreat is unfurnished with a decent apology. The poet, whose republican spirit was unbroke to the pliant arts of flattery, says in explicit terms,

Territa quæsitis ostendit terga Britannis.

The first foundations of an effective conquest and a permanent settlement, which were laid in Britain under the auspices of Rome, were those, which were begun in the reign of the emperour Claudius.

The character of his administration may be thus described. From the general tenour of his conduct it is plain, that he contemplated the senate as the sovereign power of the whole empire. He made many attempts to introduce an improvement of the constitution, by reviving or reforming antiquated laws, and by enacting salutary new ones: but these attempts he meditated and prosecuted by the advice and with the concurrence of the senate. So far, therefore, as the establishments in Britain were carried on during the administration of Claudius, it is not likely that they were marked by circumstances of uncommon rigour or oppression. Indeed, the acquisitions made in the island during that

* Consult Gib. Rom. Emp. c. 44. vol. 8. p. 26. 27. and the autho rities cited.