The penal statutes of Rome however, as Gibbon emphatically remarks, "formed a very small portion of the Code and the Pandects; and in all judicial proceedings the life or death of the citizen was determined with less caution and delay than the most ordinary question of covenant or inheritance." This was owing to the complicated relations of society, by which obligations are created or annulled, while duties to the State are explicit and well known, being inscribed not only on tables of brass, but on the conscience itself. It was natural, with the growth and development of commerce and dominion, that questions should arise which could not be ordinarily settled by ancient customs, and the practice of lawyers and the decisions of judges continually raised new difficulties, to be met only by new edicts. It is a pleasing fact to record, that jurisprudence became more just and enlightened as it became more intricate. The principles of equity were more regarded under the emperors than in the time of Cato. It is in the application of these principles that the laws of the Romans have obtained so high consideration; their abuse consisted in the expense of litigation, and the advantages which the rich thus obtained over the poor.
But if delays and forms led to an expensive and vexatious administration of justice, these were more than compensated by the checks which a complicated jurisprudence gave to hasty or partial decisions. It was in the minuteness and precision of the forms of law, and in the foresight with which questions were anticipated in the various transactions of business, that the Romans in their civil and social relations were very much on a level with modern times. It would be difficult to find in the most enlightened of modern codes greater wisdom and foresight than appear in the legacy of Justinian as to all questions pertaining to the nature, the acquisition, the possession, the use, and the transfer of property. Civil obligations are most admirably defined, and all contracts are determined by the wisest application of the natural principles of justice. Nothing can be more enlightened than the laws which relate to leases, to sales, to partnerships, to damages, to pledges, to hiring of work, and to quasi-contracts. The laws pertaining to the succession to property, to the duties of guardians, to the rights of wards, to legacies, to bequests in trust, and to the general limitation of testamentary powers were singularly clear. The regulations in reference to intestate succession, and to the division of property among males and females, were wise and just; we find no laws of entail, no unequal rights, no absurd distinction between brothers, no peculiar privileges given to males over females, or to older sons. Particularly was everything pertaining to property and contracts and wills guarded with the most jealous care. A man was sure of possessing his own, and of transmitting it to his children. In the Institutes of Justinian we see on every page a regard to the principles of natural justice: but moreover we find that malicious witnesses should be punished; that corrupt judges should be visited with severe penalties; that libels and satires should subject their authors to severe chastisement; that every culprit should be considered innocent until his guilt was proved.
No infringement on personal rights could be tolerated. A citizen was free to go where he pleased, to do whatsoever he would, if he did not trespass on the rights of another; to seek his pleasure unobstructed, and pursue his business without vexatious incumbrances. If he was injured or cheated, he was sure of redress; nor could he be easily defrauded with the sanction of the laws. A rigorous police guarded his person, his house, and his property; he was supreme and uncontrolled within his family. This security to property and life and personal rights was guaranteed by the greatest tyrants. Although political liberty was dead, the fullest personal liberty was enjoyed under the emperors, and it was under their sanction that jurisprudence in some of the most important departments of life reached perfection. If injustice was suffered it was not on account of the laws, but owing to the depravity of men, the venality of the rich, and the tricks of lawyers; the laws were wise and equal. The civil jurisprudence of the Romans could be copied with safety by the most enlightened of European States; indeed, it is already the foundation of their civil codes, especially in France and Germany.
That there were some features in the Roman laws which we in these Christian times cannot indorse, and which we reprehend, cannot be denied. Under the republic there was not sufficient limit to paternal power, and the pater familias was necessarily a tyrant. It was unjust that the father should control the property of his son, and cruel that he was allowed an absolute control not only over his children, but also his wife. Yet the limits of paternal power were more and more curtailed, so that under the later emperors fathers were not allowed to have more authority than was perhaps expedient.
The recognition of slavery as a domestic institution was another blot, and slaves could be treated with the grossest cruelty and injustice without possibility of redress. But here the Romans were not sinners beyond all other nations, and our modern times have witnessed a parallel. It was not the existence of slavery, however, which was the greatest evil, but the facility by which slaves could be made. The laws pertaining to debt were severe, and were most disgraceful in dooming a debtor to the absolute power of a creditor. To subject men of the same race to slavery for trifling debts which they could not discharge, was the great defect of the Roman laws. But even these cruel regulations were modified, so that in the corrupt times of the empire there was no greater practical severity than was common in England as late as one hundred years ago. The temptations to fraud were enormous in a wicked state of society, and demanded a severe remedy. It is possible that our modern laws may show too great leniency to debtors who are not merely unfortunate, but dishonest. The problem is not yet solved, whether men should be severely handled who are guilty of reckless and unprincipled speculations and unscrupulous dealings, or whether they should be allowed immunity to prosecute their dangerous and disgraceful courses.
Moreover, the penal code of the Romans in reference to breaches of trust or carelessness or ignorance, by which property was lost or squandered, may have been too severe, as is still the case in England in reference to hunting game on another's grounds. It was hard to doom a man to death who drove away his neighbor's cattle, or even entered in the night his neighbor's house; but severe penalties alone will keep men from crimes where there is a low state of virtue and religion, and general prosperity and contentment become impossible where there is no efficient protection to property. Society was never more secure and happy in England than when vagabonds could be arrested, and when petty larcenies were visited with certain retribution. Every traveller in France and England feels that in regard to the punishment of crime, those older countries, restricted as are their political privileges, are in most questions of secure and comfortable living vastly superior to our own. The Romans lost under the emperors their political rights, but gained protection and safety in their relations with society. Where quiet and industrious citizens feel safe in their homes, are protected from scoundrels in their dealings, have ample scope for industrial enterprise, and are free to choose their private pleasures, they resign themselves to the loss of electing their rulers without great unhappiness. There are greater evils in the world than the deprivation of the elective franchise, lofty and glorious as is this privilege. The arbitrary rule of the emperors was fatal to political aspirations and rights and the growth of a genuine manhood; yet it is but fair to note that the evils of political slavery were qualified and set off by the excellence of the civil code and the privileges of social freedom.
The great practical evil connected with Roman jurisprudence was the intricacy and perplexity and uncertainty of the laws, together with the expense involved in litigation. The class of lawyers was large, and their gains were extortionate.