revoke, which had been improperly frustrated by the defendants? After calling several witnesses in their favour, the party who spoke on behalf of himself and his co-plaintiffs, thus proceeded with his argument: "You ought, gentlemen, both on account of our near connexion with the deceased, and the facts of this case, to give your verdict, as I am sure you will, for those who rely in this dispute upon their relationship to the testator, rather than for those who rely upon the will. For you are all aware of the fact of our being next of kin, and in this no falsehood can be played off upon you. But many have before now propounded false wills ; sometimes such as were entire forgeries, and sometimes wills obtained by undue practices. And you all, as I have already said, know perfectly well our near relationship and terms of intimacy with the deceased, on which we found our claim; but none of you can be sure that the will, on which the defendants rely in their attempt to defraud us, was a valid instrument. In the next

place, you will find, that the fact of our relationship is admitted by our opponents, but the will is disputed by us. For they prevented him from cancelling it, when he wished to do so. So that, gentlemen, it is much fairer that you should give your verdict in favour of a family connexion which is allowed on both sides, than maintain a will which has been unjustly obtained. And, besides this, consider, that Cleonymus wished to cancel it at a time when he was kindly disposed towards us; but he made it when he was angry and under the influence of bad advice; so that it will be the hardest of all possible things, if you give more effect to his fit of passion, than his deliberate purpose and intention."

The above argument reduced to a logical form amounts

1 Literally "wills of persons not properly advised." ỏʊк opeŵs Bebovλευμένων.

COUNSEL IN A TWO-FOLD CAPACITY.

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CH. II.] to this: If the will is invalid, we are entitled as heirs at law; but you cannot be certain of the validity of the will, for instances of forgery have before now occurred. You ought to prefer a certainty to an uncertainty, and support therefore the claims of the relationship which is admitted, rather than the will which is disputed. The fallacy of such reasoning is obvious. The issue in the cause was the fact of the revocation, and this could be in no way affected by the admission that the plaintiffs were the heirs of the deceased, but ought to be determined strictly by the evidence and probabilities of the case.

It is a common charge to bring against advocates at the present day, that they will indifferently espouse and argue upon either side of a question; but what shall we say of the speech-writers at Athens, who sometimes composed orations for both the contending parties in the same cause.1 We possess three sets of tetralogies, or quartetts of speeches, which Antiphon wrote for the prosecution and defence in cases of trials for homicide; and an old scholiast mentions this approvingly, as a great feat of dexterity and skill. He says "It is true that Antiphon always exhibits his native and peculiar power, but especially in these speeches, in which he counterpleads against himself. For having prepared two speeches on behalf of the accuser, he composed two for the accused also, and sustained his high reputation in both alike." 2 One of these trials was of a curious nature. Two youths were practising archery in a gymnasium, when one of them happened to run across the line

"Not like Demosthenes, who secretly wrote one oration for Phormio, and another in the same matter for Apollodorus, his adversary.”. Fuller's Holy State, book iii. chap. 1.

In justice, however, to Antiphon, it must be mentioned that these tetralogies are supposed to have been mere exercises of skill, and not written for any real occasion.

of flight of an arrow shot by the other, and was killed. By the law of Athens a person who caused a death by what we call chance-medley, was liable to a prosecution, and the punishment awarded was exclusion from certain religious rites, under the notion that such an expiation was necessary to wipe off the pollution, which would otherwise rest upon the community. In this case the father of the young man who was slain was the accuser, and the defence set up was that, although it was perfectly just and proper that involuntary homicide should be punished, yet here the deceased could in no sense be said to have been killed by his companion, but was the author of his own misfortune; for if he had not gone himself in the direction of the arrow, he would not have been struck. This seems obvious enough; but four speeches are devoted to the subject, and the arguments for and against each view of the case, are not unamusing specimens of Athenian special pleading.

1 The Israelites were ordered to provide cities of refuge for the inno cent slayer. "Whoso killeth his neighbour ignorantly, whom he hated not in times past; as when a man goeth into the wood with his neighbour to hew wood, and his hand fetcheth a stroke with the axe to cut down the tree, and the head slippeth from the helve, and lighteth upon his neighbour, that he die; he shall flee unto one of those cities and live." Deut. xix. 4, 5.

? This is something like a plea which we find in Bacon's Apophthegms. "A thief, being arraigned at the bar for stealing a mare, in his pleading urged many things in his own behalf; and at last, nothing availing, he told the bench, the mare rather stole him than he the mare, which, in brief, he thus related. That, passing over several grounds about his lawful occasions, he was pursued close by a fierce mastiff dog, and so was forced to save himself by leaping over a hedge, which, being of an agile body, he effected; and in leaping, a mare standing on the other side of the hedge, he leaped upon her back, who, running furiously away with him, he could not by any means stop her until he came to the next town, in which town the owner of the mare lived, and there was he taken and here arraigned." The reader will recollect the famous case of Bullum v. Boatum, where the question was, whether the bull went off with the boat, or the boat with the bull.

CH. III.]

ROMAN LAW AND COURTS.

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CHAPTER III.

SKETCH OF THE ROMAN LAW AND THE ROMAN COURTS DURING THE REPUBLIC.

The Forum, where the immortal accents glow,

And still the eloquent air breathes, burns, with Cicero. BYRON.

BEFORE we proceed to give an account of the profession of an Advocate in ancient Rome, it will be useful to inquire briefly, what was the nature of the Roman law with which he had to make himself acquainted, and what were the tribunals before which he had to plead. It will be sufficient for our present purpose to give merely a slight and imperfect sketch; for the difficult subject of the principles and rules of the early Roman law would require an elaborate treatise of itself, if it were discussed with the fulness which it admits of and deserves. Here, it is only necessary to trace the outlines of the different heads of law as administered at Rome, without staying to investigate the processes and forms peculiar to each separate jurisdiction, or discuss the rights of parties under them. We shall thus see what were the elements, of which the complex idea expressed by the term Roman law consisted, and what it would be understood to embrace in the days of Cicero; just as we might analyse the English law, by separating it into its different branches of common law, equity, statute law, and the civil and canon law administered in our

ecclesiastical courts. For this purpose it will be convenient to follow the order of division, which we find in the Institutes and Digest of Justinian'; and I shall endeavour to render the subject more familiar to our ideas, by illustrations and analogies drawn from our own law.

The clear and interesting narrative given in the Digest, is taken from a work which no longer exists, called the Enchiridium of Pomponius. But we cannot, with implicit confidence, follow the Roman jurists as authorities on the subject of the early Roman law. To understand this aright, a correct knowledge of the ancient constitution of Rome was necessary; and we know that in this respect they were singularly deficient. The writers in the later times of the republic, had very inaccurate conceptions of the history of their country for the first few centuries; and Livy and Dionysius are constantly mis

1 Inst. I. tit. i. Dig. I. ii. 2.

"The only ancient work in which we have any thing like a systematic account of the old Roman law, as it existed in the earlier times of the republic, is the Institutes of Gaius or Caius for the name is spelt either way, according as the Greek or Latin orthography is preferred. Gaius lived in the reigns of Hadrian and Antoninus Pius, between 117 and 161 A. D.; but we know nothing of his history, except that he was a profound jurist and wrote a great work, called Institutiones, upon the ancient Roman law. Fragments of this were preserved by being incorporated into the Digest or Pandects of Justinian; but the work itself was supposed until recently to be wholly lost. Maffei had indeed, at the beginning of the last century, discovered in the chapter library at Verona two pages of manuscript, containing a part of these Institutes; but it was not until 1816, that Niebuhr, during a two-days' residence at Verona, while on his way as Prussian ambassador to Rome, discovered nearly the whole work in a palimpsest, on which were written the letters of St. Jerome. Niebuhr was not at first aware of the value of the treasure he had found, not being able at the time to decypher more than satisfied him that it was the work of some old Roman jurist; but on communicating with Savigny, the latter hazarded a conjecture that it was the lost Institutes of Gaius; and this happily proved to be correct.